Posted on Thu, Mar. 11, 2004
PIERRE, S.D. - The South Dakota Supreme Court unanimously
upheld the legal underpinnings of several outdoor game laws Thursday when
the justices refused to overturn the convictions and sentences of two Miner
County hunting guides.
Bill Moschell of Fedora and his son, Denis Moschell of
Howard, had challenged Game, Fish and Parks Commission regulations that bar
such things as using cell phones or radios to assist hunters, using vehicles
to chase or corner game animals, and pointing guns out vehicle windows while
hunting certain animals.
The guides were found guilty of several hunting violations
in April 2002 after a GF&P undercover operation.
The Moschells argued that the agency exceeded its
authority by adopting rules making it illegal to do a variety of things
It violates the separation of powers doctrine in the South
Dakota Constitution for the Legislature to let an executive branch agency,
such as GF&P, establish basic hunting regulations, the guides argued.
Only the Legislature can define the essential elements of a crime and decide
range of punishments for that crime, they said.
The justices agreed the Legislature cannot delegate
essential lawmaking powers to state agencies or departments. But the high
court said the Legislature may grant administrative officials partial
authority to carry out legislative policies. That delegation is all right if
the Legislature provides proper guidelines to achieve its broad objectives,
the justices said.
The Legislature has passed laws to make it clear that
wildlife should be protected, and lawmakers have given GF&P sufficient
direction to achieve that policy, wrote Justice John K. Konenkamp.
"Our Legislature cannot know in advance each year, for
example, what the pheasant population will be each fall hunting season, or
the deer population, or how recent weather conditions affect the condition
of our wildlife," Konenkamp said. "GF&P has the expertise to
ascertain this type of information and regulate hunting from season to season."
The Moschells were arrested after undercover game wardens
from Iowa were called in to help South Dakota officials who had long
suspected the guides of breaking game laws but were not able to catch them.
Undercover agents hunted pheasants and deer with the pair six times in 1999
Bill Moschell, who was convicted of 15 hunting violations,
was fined and given a two-year jail term. Most of the jail time was
suspended if he followed certain conditions while on probation. However, he
was ordered to spend 20 days in jail in each of three years, beginning on
the day before pheasant season starts.
Denis Moschell was found guilty of seven hunting
violations. He also was fined and received the same jail conditions.
Circuit Judge Jon Erickson of Huron also ordered the
three-year loss of the Moschells' hunting licenses.
The hunting guides said in their appeal the unusual jail
sentences were not legal, but the Supreme Court rejected that argument, too.
State law lets judges set the terms of jail sentences, the
high court said, adding that it was perfectly logical to jail the guides
during pheasant season.
"Given that their convictions evinced blatant disdain for
hunting laws, it would be during this specific time that (the) defendants
would more likely break the conditions of probation," Konenkamp wrote.
The Supreme Court said there was enough evidence to
convict the Moschells.
State officials said the men hate game wardens and had
been under suspicion for some time. The sting also resulted in the arrest of
16 others, including many friends and relatives who helped the hunting
Most of the others pleaded guilty.