ELR Citation: ELR 20023
No(s). 2006 SD 8 (S.D. Jan 24, 2006)

The court holds that a state statute concerning the shooting of small game from a public right-of-way does not constitute a compensable taking under the U.S. or South Dakota Constitutions. 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 the landowners' claim that the state's act in passing the statute or the hunters' actions of firing shot resulted in a per se regulatory physical taking. Nor is there a regulatory taking under Penn Central Transportation Co. v. City of New York, 438 US 104, 8 ELR 20528 (1978). Even if the landowners were able to establish economic losses or a bona fide injury to distinct investment-backed expectations, 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 the statute, that is the legal cause of any injury incurred by the landowners.