March 10, 1977

Mr. C. D. Kell 
Attorney at Law 
Murdo, South Dakota 57559

Official Opinion No. 77-21

Hunting permits for aerial hunting

Dear Mr. Kell:

You have requested an official opinion from this office on the following questions:

QUESTIONS: 

1.  Is it lawful for the Department of Game, Fish and Parks to issue hunting permits allowing aerial hunting of coyotes and foxes? 
    
2.  If the commission does have the authority to issue such permits, is it proper under SDCL 41-8-9.2 to issue them to aerial hunters who are not residents of the county where the hunting is being done?

IN RE QUESTION NO. 1:

With respect to your first question, it is clear that the Legislature intended SDCL 41-8-39.2 to give the Department of Game, Fish and Parks authority to contract for eradication of foxes and coyotes under certain circumstances and conditions.  If an individual with whom the commission contracted did not follow the provisions and limitations of the contract, that person would then seem to me to be in violation of section 41-8-39 and its penalties. To avoid a developing enforcement problem of having prosecutions against contract violators thrown out on the grounds that they were being prosecuted criminally for a contract violation, the present permit system was initiated.

Although it appears to me that a violator of a Game, Fish and Parks contract under this section of the law would not be improperly prosecuted criminally for a violation of SDCL 41-8-31, I believe the question is close enough to warrant going to the present “permit” approach.  Such a restricted permit does not appear to me to exceed the authority granted by law to the commission. Accordingly, the answer to your first question is yes.

IN RE QUESTION NO. 2:

In response to your second question, SDCL 41-8-39 provides a general prohibition against using aircraft to hunt or kill game birds and animals. SDCL 41-8-39.1 provides for a specific exception to SDCL 41-8-39 in the case of owners or lessees of land using aircraft to hunt and kill coyotes and foxes on such lands as they own or lease, or on the lands of adjacent lands if such person has the adjacent landowner's consent.  SDCL 41-8-39.2 provides a further exception: 
    
Notwithstanding the provisions of § 41.8.39, the department of game, fish and parks is authorized to contract with aerial hunters in each county to control foxes and coyotes as permitted under P.L. 92-159 or §  40-36-8 or §  40-36-9 when requested by landowners or tenants. (Emphasis supplied.)

The underscored provisions of SDCL 41-8-39.2 seem to me to imply that the Department of Game, Fish and Parks can contract only with aerial hunters who reside in a particular county, to hunt foxes and coyotes by air in that county.  The underscored provisions of §  41-8-39.2 would have no real purpose or necessity of being included if one were to interpret that statute to the extent that hunters from any residence could be authorized to do aerial hunting.  The law is well settled and established in South Dakota that in interpreting statutes, one must harmonize the statute and so far as possible give effect to all of the provisions of the statute. Northwest Finance Co. v. Nord, 70 S.D. 549, 19 N.W.2d 578 (1945).

I can understand that problems may possibly arise in finding county residents to contract with to meet the requirements of § 41-8-39.2, particularly in remote areas of South Dakota where aerial hunting to control foxes and coyotes is badly needed.

Problems such as this, however, are not of such a nature that the underscored language specifically included in § 41-8-39.2, or well-established rules of statutory construction, can be ignored.  I must interpret the law as it exists and leave to the Legislature the function of passing and changing laws.

Accordingly, it is my opinion that the answer to your second question is no.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:jo