MITCHELL, S.D. -- A former top state official says the South Dakota Game, Fish & Parks Department “is under the pressure of the governor” to support a bill that he believes will significantly hinder the work of conservation officers.
John Cooper, the state’s GF&P secretary from April 1995 to January 2007, will be testifying against House Bill 1140 when it is introduced Tuesday into the House Agriculture and Natural Resources committee. The bill “restricts the entry of conservation officers onto certain private land without permission” and has been supported vocally by GF&P Interim Secretary Kevin Robling. It is being brought forward by GF&P at the request of Gov. Kristi Noem.
“It would be pretty Pollyannaish and naïve to think a department is going to come in to testify against a governor’s bill,” Cooper said Thursday, Feb. 11. “I was in the same shoes that Mr. Robling is in, and there’s no question that a department secretary is going to be counseled heavily about whether or not they should support or remain moot about an issue. But I know damn good and well this bill will not do GF&P or South Dakota’s average sportsman any good.”
During the most recent GF&P Commission meeting, Robling said the proposed legislation is meant to “strengthen private property rights.” If passed, the law would no longer allow a conservation officer — aka “game warden” — to enter private property to do a compliance check with the exceptions of a reasonable suspicion of probable cause; a distressed or injured animal that needs to be dispatched; or responding to an emergency situation.
The change would essentially prohibit a conservation officer from going onto, for example, a cornfield that’s owned by a local farmer and is being hunted for pheasants. The officer no longer would be allowed to simply drive out on that privately owned cornfield and check licenses or review bag limits unless that officer OKs it with the landowner first.
“Our conservation officers are definitely going to enhance those landowner-producer relationships, obtain landowner permission before the season starts, work with producers on a day-to-day basis, like they’re already doing, and this will definitely strengthen those relationships,” Robling said during the commission meeting.
In a Jan. 26 announcement from Noem about the legislation, she said the bill would "build on GF&P's excellent work to protect property rights." Lt. Gov. Larry Rhoden, who sponsored similar legislation while a state legislator, said the state needs to "close the open fields loophole."
Considering approximately 80% of the state’s 77,000 square miles are privately, multiple GF&P conservation officers contacted by Forum News Service declined to discuss the topic with some even saying they’ve received “strict” directives to divert questions directly to Robling, who has been interim secretary since December after the retirement of Kelly Hepler.
Cooper, who was a cabinet official under Govs. Bill Janklow and Mike Rounds, said similar legislation has been proposed multiple times in the past 25 years. Cooper was a special agent of the U.S. Fish & Wildlife Service for 23 years prior to working for GF&P. He also served on the GF&P Commission after his time as secretary. He said GF&P has always opposed similar legislation.
“A lot of this is about politics, and this is mostly a political stance from Gov. Noem about overregulation,” Cooper said.
During his time as secretary, Cooper said this specific topic was highly debated due to a West River case he helped investigate during his time as a federal game warden while then transitioning into his cabinet role. The details of that case led to discussion whether conservation officers could enter private property, or whether it was a violation of the Fourth Amendment — which prohibits unreasonable search and seizure.
At the time of the debate, Cooper consulted for a legal opinion with the then-South Dakota Attorney General Larry Long, who determined that “a duly sworn and certified or probationary conservation officer has the authority to enter privately owned “open fields” without suspicion, probable cause, consent or permission, or a search warrant to perform duties of conducting license checks and enforcing wildlife laws. Furthermore, such entry by a conservation officer does not constitute an illegal trespass.”
“The Supreme Court of the U.S. and the Supreme Court of the state of South Dakota have upheld that in open fields, there is no Fourth Amendment right as he would have if we were trying to look into this house against illegal search and seizure,” Cooper said Thursday. Cooper said he will also be speaking on behalf of Jeff Vonk, who was GF&P secretary from 2007 to 2015 and also opposes the bill.
According to the 2019 South Dakota GF&P law enforcement report — the most recent available — conservation officers issued 513 hunting violations, with the most common offenses being artificial / night vision (54); hunting in the wrong unit for big game (37); unlawful possession of big game (33); hunting on the highway for big game (31); and no license for big game (30).
Jeff McEntee, of Mitchell, and Mark Smedsrud, of Hartford, are retired full-time GF&P conservation officers. Both oppose the bill.
McEntee sent a letter to local legislators in District 20, which covers Aurora, Davison and Jerauld counties.
In it he wrote, “If you feel the public can participate in these highly regulated activities with little to no oversight, then you should support this bill. Through my own professional experience and the practice of well over one hundred years of wildlife management suggests otherwise.”
Smedsrud on Thursday said, “I was a game warden for 27 years, and I can tell you that the majority of violations are detected just during the course of a routine compliance check, which is checking a hunter for his license and inspecting the game and making sure they’re complying with the laws. Poaching and wildlife violations are alive and well in South Dakota, I know so. And this prohibits from even going out to a cornfield and checking a hunter for his license. How are you supposed to see a license from the road?”