October 6, 1981

Mr. Jack Merwin
Secretary 
Department of Game, Fish & Parks 
Anderson Building 
Pierre, South Dakota 57501

Official Opinion No. 81-32

Residency Requirements for Obtaining a Resident Hunting and Fishing License

Dear Mr. Merwin:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Mr. X is a career military person inducted into the United States Military Service from South Dakota.  Mr. X is married to Mrs. X, who is also a native South Dakotan.  Mr. X has been stationed in Texas for several years where he and his family have lived.  Both Mr. and Mrs. X maintain their voting residency in South Dakota and have voted in several general elections by absentee ballot.  Mr. and Mrs. X have a son, Y, who is 15 years of age and resides in Texas with his parents.  The X's maintain no home or living quarters in South Dakota.  Both Mr. and Mrs. X state that they do not claim resident hunting or fishing privileges in Texas.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Does Mrs. X qualify for resident South Dakota hunting and fishing privileges? 

2.  Does Y, X's son, qualify for resident hunting and fishing privileges? 

3.  Does the entire family of a military man inducted from South Dakota enjoy the privileges of residency both in the state of induction and also in  a state where stationed?

IN RE QUESTION NO. 1:

'Resident' is defined, for hunting and fishing purposes, in SDCL 41-1-1(18) as: 

[A] person actually living within and intending to make his home in this state.  No resident shall lose his rights under this title by reason of his absence on business of the United States or of this state, or armed services of the United States or any student regularly attending a school of higher learning as a full-time student.

South Dakota law requires a person, for the purpose of being granted resident hunting and fishing privileges, to: 

1.  Actually live within the State of South Dakota; and 

2.  Intend to make his home within the State of South Dakota.

The statute does exempt three distinct groups of individuals from this requirement, to wit: 

1.  Persons absent from the State of South Dakota on business of the United States or the State. 

2.  Persons absent from the State of South Dakota serving in our country's armed forces. 

3.  Persons absent from the State of South Dakota who are full-time students regularly attending a school of higher learning in another state.

It appears from the facts that Mrs. X is living in Texas so she certainly is not a person residing within the State of South Dakota.  If Mrs. X does not qualify under one of three exemptions listed above she cannot be granted resident hunting and fishing privileges.  It is my opinion that being a spouse of a person serving in the armed forces, alone, is not enough to qualify a person for resident South Dakota hunting and fishing privileges.

IN RE QUESTION NO. 2:

The legal discussions and arguments presented by Question No. 1 are all relevant and pertinent to answering Question No. 2.  Y is living in Texas so he certainly is not a person actually living within the State of South Dakota.  To qualify for resident hunting and fishing privileges Y must qualify for one of the three exemptions listed above.  It is my opinion that being a son or daughter of person serving in the armed forces, alone, is not enough to qualify a person for resident South Dakota hunting and fishing privileges.

IN RE QUESTION NO. 3:

In regard to your third and final question, my answer is No. A family, regardless of whether or not it is of a military man, cannot enjoy the privileges of residency in more than one state.

But it is important to note that a soldier may be stationed in a state that has a statutes similar to or identical to South Dakota's 41-6-52.  That statute provides in pertinent part: 

No resident license shall be granted . . . unless the applicant has been a resident of this state for at least ninety days prior to making of the application; except that any person in the armed services of the United States who has been continuously stationed in the state of South Dakota . . . for ninety days or more immediately preceding his application . . . shall be deemed a resident of the state of South Dakota for the purposes of this title.

If the soldier's state of assignment has a statute similar or identical to SDCL 41-6-52, which grants him the privileges of residency within his state of assignment, it is possible that Mr. X could enjoy the privilege of resident hunting and fishing in both South Dakota and also the state in which he is stationed.  Again, this would only apply to Mr. X and not his family, and would be the case only if the state of assignment had a statute similar or identical to SDCL 41-6-52.

Respectfully submitted,

Mark V. Meierhenry
Attorney General