SD bill would put an end to use of open fields doctrine

Legislation to essentially repeal use of the the open fields doctrine by the state Game, Fish and Parks is making its way through the South Dakota legislature.

HB 1140, introduced by the committee of Agriculture and Natural Resources, at the request of Governor Noem, would require conservation officers (employed by the South Dakota Game, Fish and Parks) to ask permission before entering private property. The bill has been approved by the House of Representatives, but has not yet been heard by a Senate committee.

Currently, under the “Open Fields Doctrine,” a custom based on court decisions and laws, conservation officers are legally able to enter private property to conduct compliance checks – to investigate hunters and/or landowners’ activity (whether or not the individual is present). These checks can currently take place without the landowners’ permission, and with no reasonable suspicion or probable cause that wrong-doing is occurring.

South Dakota’s Game, Fish and Parks Interim Department Secretary, Kevin Robling, who spoke in favor of the bill in the South Dakota House Agricultural and Natural Resources Committee, said that this bill is putting into law the current practice of his 80 game wardens, also known as conservation officers.

While the law currently allows these officers to enter private property without permission, since 2011, the department has scaled back such activity, said Robling in testimony before the committee. Current policy within the department is for officers to remain on public areas such as roads or section lines and wait for a hunt to be completed before conducting a check. Also, they are generally only conducting checks when and where they see a hunt occurring. So, for example, they are not looking in freezers or vehicles for evidence, unless they have reason to believe wrongdoing has occurred.

HB 1140 would still allow conservation officers to enter private property without permission under the following circumstances:

(1) If reasonable suspicion or probable cause exists that a violation of a law that the conservation officer is authorized to enforce has been, is being, or is about to be committed on the private land;

(2) To dispatch crippled or distressed wildlife the conservation officer has personally and lawfully observed on the private land; or

(3) To respond to emergency situations, accidents, or other threats to public safety occurring on the private land.

An important duty of conservation officers is to develop a relationship with landowners, said Robling. “A strong partnership with landowners is absolutely critical.”

Harding County rancher Bob Johnson, who served for two years on a West River area working group, testified in favor of the bill, saying he doesn’t have reason to deny a game warden permission to enter his property, adding that “I never did think it was that hard to ask.”

“If we could get the game wardens to stop at our place…just the relationships that it would create,” said Johnson in committee testimony.

“I really don’t think putting this into law is going to deny any game warden the opportunity to come onto our land. I don’t like poachers, if I saw a poacher, I’d turn them in,” he said.

“We really love the wildlife, animals are very important to us, we grow them every day – cattle, sheep, hogs. We don’t like to have anything done to them, and we don’t want anything done illegally to deer,” said Johnson.

Several individuals spoke against the bill including former GFP Secretary John Cooper. “You can basically kiss your compliance checks goodbye,” he said. “The officer won’t have probably cause or reasonable suspicion.”

Cooper said that those who hunt on federal or state land would be put at a disadvantage under this law. “By doing this, you are creating two classes of hunters, between those who hunt on private lands, and those who hunt on public lands. We believe this is in violation of the constitution. Another burr under our saddles is that this singles out the hardworking, dedicated officers. US Fish and Wildlife Service Officers, Sheriffs, deputies, police, DCI, the all use the open fields doctrine, yet they are not included in this bill. If you have a problem with open fields, amend the bill and put all officers on this.”

George Vandel of Pierre, speaking on behalf of the South Dakota Waterfowl Association, said that following the law and taking only the legal limit of waterfowl takes “tremendous restraint,” and that “the only thing that stops hunters (from breaking the law) is deterrence. They have to have that deterrence,” he said.

Those who hunt on public land will say “I wonder what they will get away with on private land,” and those who hunt private land will say “I wonder what I will get away with while hunting private land,” he testified.

In an interview, the ag committee chairman, Marty Overweg of New Holland, said that the bill is a land rights bill.

“Landowners have rights. It was basically out of our control, with game wardens being able to come on your property whenever they wanted to and for no reason.

“It’s important to know that the Game, Fish and Parks supported this bill,” he pointed out.

“Whether you have a house in Sioux Falls or 10,000 acres of land, you deserve the same privacy,” he said.

Overweg said the state GFP has made an effort to improve relationships with landowners in recent years, and he expects that to continue to improve under the direction of Secretary Robling and Governor Noem.

The committee approved the bill with a do-pass recommendation in a 10-2 vote and the House passed it 41-28.

The bill will be heard in the Senate Judiciary Committee March 2, 2021, at 8 am CST in room 413 of the state Capitol.

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