*1 J., AMUNDSON, MILLER, and C. Leapley, Garritsen GILBERTSON, JJ., Class, 524 KONENKAMP and (quoting Mitchell (S.D.1994)). concur. claim he was does not Cloud [¶ 31] St. counsel’s actions.
prejudiced trial by trial counsel’s argues was aided State hearing, St. Cloud’s strategy. At the habeas Rabuek, counsel, was called Steve reputation up Lower stated, Cloud’s] “[St. if he asked quite bad.” When Brule was jurors inclined leave have been “would SD 75 jury panel” a ease from Lower Brule on Hanson, Nelson, REIS, Ted Brad David answered, Cloud, involving trial counsel St. Jr., Kjerstad, Leonard Hollinan, prosecutor former Larry “no.” Appellants, testified, Tribe Brule Sioux for the Lower not liked Cloud] was well “[St. community, people that around the MILLER, D. Governor State Walter Mammula, Larry I talked to.” Hollman Dakota; Barnett, Mark At of South W. attorney, Legal Services the Dakota Plains torney State South General knowledge was also that it common testified Beringson, Dakota; J. Sec and Richard that at one St. Cloud had the reservation Department retary court. pled guilty time to this crime federal Parks; Game, Fish and all in their capacities, Ap official Defendants and Smith, attorney had Steve [¶32] pellees. jury selection was asked assisted Rabuek Lower wanted Indians from whether No. 19297. jury and Brule on the answered: Supreme Court of South Dakota. [St. concerns. knew that We had some We general reputation in Brule Lower Cloud’s] Argued April highly thought upon. And very not very Decided June secondly, over the we were concerned many people in Lower Brule were fact knew, previ- [St. Cloud] had
afraid pled ously guilty ... in federal court to rape conviction We were afraid jury put might have someone on the said, “No, nothing who would have know fair,” case, by the this I can be about previous- token knew that [St. Cloud] same ly pled guilty. had prospective Smith also testified that one juror divulged St. from Lower Brule panel, guilty plea to the entire coun-
Cloud’s sel have had move a mistrial “would over.” start court determined habeas jury comprised panel fair cross community held it was
necessary question. answer St. Cloud
has not shown ineffective assistance of coun-
sel.
[¶ Affirmed.
ry judgment against action state officials (Defendants) capacities. their official original Plaintiffs claim the creat- easement ing section line give did not power to allow fish- trapping rights-of- the section line way and that 41-9-1.1 is a violation equal protection. We affirm.
FACTS subject
[¶ Plaintiffs each 2] own land to an easement for a highway. section line Reis is Tripp County, a resident of Hanson a Day County, resident Nelson is a resident Kjerstad County, Sanborn ais resi- County. dent of Haakon declaratory judgment [¶ Plaintiffs filed a against action Defendants their official Governor, capacities Attorney General, Secretary Depart- of the South Dakota Game, ment of Fish and Parks. Plaintiffs challenged validity of SDCL 41-9-1.1 as to hunting, fishing relates rights-of-way. section line presented
[¶4] Plaintiffs witnesses to harm testified hunters. The witnesses told of a man hit pellets, shooting hunters within 250 to of occupied 300 feet school houses, buddings shooting hunters live- stock, causing congestion and hunters traffic vehicles, damage outbuildings in- cluding shooting some less than 500 feet from operated during a combine Defen- harvest. point experi- dants witnesses’ years period over a ences occurred fifteen many of and that the incidents did not in- volve road declaratory judgment
[¶5] following denied a trial to the “In court. Hubbard, Hubbard, Bruce A. Hansen and actions, declaratory judgment of] [review Sturgis, plaintiffs appellants. obligation legal Court ‘has an to reach its Bennett, Atty. Gen., Mark W. M. Craig independent from conclusions the conclusions Eichstadt, Gen., Pierre, Deputy Atty. for de- court.’” reached the trial Black Hills fendants-appellees. Novelty Gaming, v.Co. S.D. Comm’n on 70, 72 North SABERS, Justice. Telephone Stofferahn, western Bell Reis, (S.D.1990)). Hanson, Thus, Kjerstad Nelson and re (Plaintiffs) appeal questions denial their deelarato- view these of law de novo.1 Id. Labor, argue Dept. this issue should be reviewed mann (S.D. de novo for another reason: addresses a statu easement, tory legal question. which is Per Inc., SDDS, transportation [¶ 8] Plaintiffs claim the re (SD 1991); Department imposed Permann v. does (S.D.1987)). 113, 117
Labor, general include enter fish, hunt Generally, person “no *3 hunting, fishing trapping. purpose of or trap land not his own private or provides: SDCL 31-18-1 permission from the possession his every along 41-9- is line in this land.” There section owner or lessee of such SDCL Here, public highway by operation challenge the constitu- state a located 1. law, except portion tionality on the basis of SDCL 41-9-1.1 some improved section lines.2 permits along such section line has been provides: by 41-9-1.1 or the law- heretofore vacated relocated officer, public ful action of some authorized Except as for controlled access facilities board, or tribunal. §in interstate defined 31-8-1 and ways, unimproved lines not com- section Plaintiffs also claim a violation monly public rights-of-way used as Equal Protection Clause of Fourteenth their natural never altered from Amendment the United States Constitu- facilitating any way purpose for the VI, 18, § tion Article South Dako- passage, highways or within vehicular scope ta Constitution. We first address ad- parks or within or or recreation areas granted by Highway Act. shooting or joining public areas fuges applica- an posted for restriction of fishing 1. Whether by the as hereinafter set forth ble use public trapping are included in the Parks, Game, Department of Fish and right-of-way on section lines trap- apply fishing, § does not bl-9-1 in South Dakota. highways other ping or or rights-of-way origi line [¶ 11] Section rights-of-way this No public within state. 1866, legislation. nated with federal Con except adjoining person, landowner gress way “The declared: any person receiving permission written lands, public highways construction of over landowner, adjoining may from use uses, hereby grant public not reserved for is highways rights-of-way purposes 253, 8, 262, § 14 ed.” Ch Stat 43 USCA six defined in section within this 932; County, § 72 Costain v. Turner sixty occupied dwelling, an feet of hundred 427, 382, 428, 36 N.W.2d 383 church, No sehoolhouse or livestock. except adjoining person, Territory of Dakota enact- any person receiving written stating: ed 33 SL 1870-1871 “That Ch landowner, use Territory all hereafter section lines highways purpose hereby shall be and are declared sixty feet of within six hundred highways practicable....” as far as dwelling, occupied an church or school- provided law in effect at time is a house. A violation of this section along public highways section lines “shall Class 2 misdemeanor. sixty-six feet wide and shall be taken equally from each side of section line” added.) (Emphasis 27, changed provided by § as law. unless 41-9-1.1 is un- [¶ 7] Plaintiffs claim SDCL Ch SL 1867-1868 as amended Ch of a constitutional because allows 1874-1875; 28.0105. The fed- SL SDC right-of-way in a incon- manner dedication, eral statute made the the terri- it was purpose for which sistent with it, accepted and at the torial statute same Congress in the United States dedicated highways. designated time the location of adopted by Terri- 1866 and the South Dakota (now Costain, 428-29, SL 72 S.D. at torial as 33 1879-1871 31-18-1). provides the width of these “SDCL the 1996 not material 252, this case. See 1996 SDSessL ch 2. SDCL 41-9-1.1 has been amended Legislature, South which amendment
81
sixty-six
to,
section
to have access
and use
feet, thirty-three
feet on
side of
each
lines.” State v.
222
N.W.2d
State v.
Costain,
line.”
(citing
(S.D.1995).
long
“As
the section
382). Third,
the Peters court
“
legally
line has not
vacated the
been
ascertaining
‘in
the intention of the
has a
travel on it.”
Bar
statute,
interpretation
the court’s
should not
Co., Inc.,
Burlington
ney v.
Northern R.R.
prejudice
impair
interest or
(cert.
(S.D.1992),
denied
existing right
unless
within the
Dakota,
Kaubisch
statute requiring it to have such operation is
(1993));
S.Ct.
L.Ed.2d 661
so clear that no reasonable doubt can exist of
State,
& Co. v.
Gustafson
such
Id. (quoting
intention.’
State Theatre
*4
(1969);
Lawrence v.
Smith,
(S.D.
Co. v.
Ewert,
710 1979)). Fourth, the trial court noted that the
(1908)).
Peters
specifically rejected
court
argu
Plaintiffs claim
High-
that the 1866
ment that “the usual liberal construction al
not,
way Act easement does
and the South
lowing public
of
use
cannot
lines
not,
Dakota statutes should
include
extended to this section line
because
bene
fishing, trapping and other recreational activ-
only
goes
fits
hunters and
nowhere
part
highway right-of-way.
ities as
end.”
east
Id.
They
legislation
claim the territorial
[¶ 14] Several South Dakota cases have
strictly
eh
SDCL
31-18 should be
construed
Highway
addressed the
Act easement.
In
expand
so
to
right
has no
Harter,
Sample
156 N.W.
public hunting.
easement to include
Plain-
attempted
a landowner
stop
to
argue
tiffs
the absence of
in the
improvement
roads,
of section line
which was
legislation granting
right
territorial
to
sought
gain public
to
access to
lake.
The
hunt,
trap
They
important.
fish or
claim if
argued
the section lines were not
those activities were meant
to be included
“practicable”
highways
as
because
easement,
legislation
spe-
would have
only
led
to the lake and the
them,
cifically
particularly in
mentioned
“no ownership
beneficial
[the]
interest
1870’s when
were not
expenditure
lakes that would warrant
merely
necessary
leisure activities but were
necessary
highways passable.”
to make [the]
provide
to
and clothing.
food
Sample, 37
at
at
part
claim such activities were
of the
navigable
This court held the lakes were
way easement.
belonged
therefore
the State for the bene
applied
[¶ 13] The trial court
four “rules of
people.
fit of all
The court
held that was
scope
construction” to determine the
of the
“practicable”
expend
funds to make a sec
First,
Highway Act easement.
the trial
passable
tion line
so that the
could use
court
considered that
easements
“boating, fishing,
them to reach
lakes for
granted by Congress are not common law
Id.,
fowling, bathing,
taking
ice[.]”
(dis-
Barney,
easements.
154,
plete
ban on road
would
equally
legislative
... of a
decision to not criminalize
difficult to enforce.
which,
conduct
there would be a civil
remedy
it is
trespass.”
The trial court
adopt
[¶ 19] The
court declined to
D.,
cited Linda R.S. v. Richard
410 U.S.
analysis
North Dakota’s
in Rutten because
93 S.Ct.
[¶ 24] hunting any- passed its first limitation on position, quoted adopt which court’s State, by requiring in the owners’ following Linda R.S.: from private to hunt on land. See consistently hold prior “The decisions Court’s 41-9-1. standing lacks to contest that a citizen authority prosecuting when policies of game At common prosecuted nor threatened himself is neither sovereign property to be the deemed at 93 S.Ct. prosecution.” with private property real state not at 541. The trial court 35 L.Ed.2d Pollock, owner. State v. prosecuting is the noted that Therein stat- N.W. we However, authority in this situation. ed: Supreme Court note that the United States power largely the state based This is legislation applica- its did not address property right circumstance that the rate, any prosecutor. At Plain- tion game vested the wild within its borders is any authority persuade cite us tiffs did people sovereign in their trial court’s determination that capacity; police and as exercise its standing was in error. There- did not have protect powers its fore, we affirm. citizens, it is not benefit its duty right, but is the of the state to take C.J., MILLER, and AMUNDSON steps preserve game such as shall KONENKAMP, JJ., concur. kill greed of hunters.... privilege granted is boon GILBERTSON, J., with [¶ concurs 26] expressly impliedly either the sover- writing. authority right inhering eign not a GILBERTSON, (concurring). Justice individual.... 365-66, at 559 analysis fully with concur This law RCL common doctrine opinion. sepa- majority I write result of passage in 1899 was reinforced rately only analysis to present additional 41-1-2, provides now which what is supports majority
which I believe also
animal,
bird,
part,
“any game
conclusion. It
clear that
Dakota has
*7
always
fish ...
shall
and under all
allowing hunting except
a tradition of
where
circumstances
and remain the
Legislature
to restrict or
has chosen
state....
prohibit it.
Eighty-two years
go by
until
were
support
Historically,
there is no
Legislature sought
hunting
to limit
with-
that the Terri
contention of the Plaintiffs
rights-of-way simply
because of
certain
1870,
Legislature
accepting
torial
when
realty’s
status
the amendment
rights-of-way
easement from
Federal
41-9-1.1 to that
v. Pe-
effect. State
by enacting
is now
Government
what
217,
(S.D.1983).
ters,
Prior
31-18-1,
pre
limit
intended to
somehow
time,
applicable
to that
hunting
these
clude
ribbons
real
hunting restrictions in
those
existence were
During
period, no
estate.
the Territorial
generally pertaining
bag
such as
any
limitations can be found on
protections
or for the
of farm build-
limits
although
presume that a landowner
ings, fields and schools. See SDC
trespass
action
could maintain an
§ 25.0427.
entering
permission.
on his land
his
Bates,
Thus,
claim
that somehow
See Clark v.
(1877).
thereafter,
anytime
the Dakota
aff'd, 95
differently, history. remake but we cannot Court, County DeCoteau District 43 L.Ed.2d S.Ct. 1996 SD Sherry CAVENDER, as Guardian Cavender,
Deonne Renae Natural Daughter Employee Matthew O’Con
nor, Appellant, Plaintiff and
BODILY, INC., Casualty Aetna Surety Co., Appellees.
No. 19198. Supreme South Dakota. Court of March Considered on Briefs 19, 1996. Decided June