80th Legislative Session _ 2005
AMENDED

Committee: House Judiciary
Wednesday, January 26, 2005

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Gillespie
P    Haley
P    Hennies
P    Jensen
P    Michels
P    Murschel
P    O'Brien
P    Roberts
P    Sebert
P    Tornow
P    Van Norman
P    Hunt, Vice-Chair
P    Cutler, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Chair Cutler

MOTION:     TO APPROVE THE MINUTES OF JANUARY 24, 2005

Moved by:    Sebert
Second by:    Roberts
Action:    Prevailed by voice vote.

         HB 1105: revise the definition of domestic abuse.

Presented by:    Representative Joni Cutler
Proponents:    Dianna Miller, SD Network

MOTION:     AMEND HB 1105


1105jb
     On page 1, line 8 of the printed bill, after " 22-1-2(9) " insert " between family or household members ".

Moved by:    Roberts
Second by:    Hennies
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1105 AS AMENDED

Moved by:    Tornow
Second by:    Jensen
Action:    Prevailed by roll call vote.(12-0-1-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Michels, Murschel, O'Brien, Roberts, Tornow, Van Norman, Hunt, Cutler

Excused:    Sebert

         HB 1080: provide for notification to the petitioner when an ex parte protection order is served.

Presented by:    Representative Casey Murschel
Proponents:    Dianna Miller, SD Network
        Dick Tieszen, SD Sheriffs

MOTION:     DEFER HB 1080 UNTIL JANUARY 28, 2005

Moved by:    Michels
Second by:    Hennies
Action:    Prevailed by voice vote.

         HB 1092: provide for a commercial real estate broker lien.

Presented by:    Representative Joel Dykstra
Proponents:    Sandi Runde, Rapid City
        Michael Bender, Bender Commercial Realty, Sioux Falls
Opponents:    Chuck Schroyer, SD Land Title Assn.
        Bob Riter Jr., Nat'l Federation of Independent Business

MOTION:     DO PASS HB 1092

Moved by:    Tornow
Second by:    Hennies
Action:    Was not acted on.

MOTION:     SUBSTITUTE MOTION DEFER HB 1092 TO THE 41ST LEGISLATIVE DAY

Moved by:    O'Brien
Second by:    Hunt
Action:    Prevailed by roll call vote.(8-4-1-0)

Voting Yes:    Gillespie, Haley, Jensen, Michels, O'Brien, Roberts, Van Norman, Hunt

Voting No:    Hennies, Murschel, Tornow, Cutler

Excused:    Sebert

         HB 1049: revise certain provisions regarding the permitting and the regulation of shooting preserves and to declare an emergency.

Presented by:    Doug Hansen, Department of Game, Fish and Parks
Opponents:    Brent Wilbur, SD Gamebird Assn.

MOTION:     AMEND HB 1049

1049ra
     On the printed bill, delete everything after the enacting clause and insert:

"      Section 1. That § 41-10-1 be amended to read as follows:

     41-10-1.   In Terms used in this chapter , unless the context otherwise requires mean :

             (1)      "Commission , " shall mean the South Dakota the Game, Fish and Parks Commission, acting directly or through its duly authorized officers or agents;

             (2)      "Department," the Department of Game, Fish and Parks, acting directly or through its duly authorized officers or agents;

             (3)     "Person , " shall include includes individuals, copartnerships, associations, and corporations;
             (3) (4)      "Shooting preserves preserve, " shall be an any acreage either privately owned or leased on which hatchery raised game is released for the purpose of hunting, for a fee, over an extended season.

     Section 2. That § 41-10-2 be amended to read as follows:

     41-10-2.   The Game, Fish and Parks Commission department may issue and renew shooting preserve operating permits for privately owned and operated shooting preserves.

     Section 3. That § 41-10-3 be amended to read as follows:

     41-10-3.   Any person owning, holding, or controlling, by lease or otherwise, any contiguous tract of land of not more than one two thousand two five hundred eighty sixty acres, who desires to establish a shooting preserve under the regulations provided in this chapter, shall may make application to the Game, Fish and Parks Commission department for a shooting preserve operating permit. Said The application shall be made by the applicant , his agent, or his or the applicant's agent or attorney, and shall be accompanied by a fee which is determined as provided by § 41-10-4.

     Section 4. That § 41-10-4.5 be amended to read as follows:

     41-10-4.5.   Upon receipt of a written application for a new shooting preserve operating permit, the commission shall schedule a public hearing on the application department shall notify the public of the application by publishing notice of the time and manner in which interested persons may present data, opinions, or arguments in writing to the department on the application and the manner in which interested persons may request status as an interested party and request receipt of written notice of the decision of the department . The department shall publish the notice of the time, place, and purpose of the hearing once at least twenty days before the hearing prior to the time designated by the department in the published notice in at least three newspapers of general circulation in areas of the state likely to be affected by the proposed permit. After the hearing, the commission may issue the permit in accordance with the requirements of § 41-10-7. No more than ten days after the time designated by the department in the published notice, the department shall provide and mail by certified mail, return receipt requested, written notice of its decision made in accordance with the requirements of §  41-10-7 to the applicant and to any person who submitted within the prescribed time and manner data, opinions, or arguments in writing to the department in opposition to issuance of the new operating permit and who requested the status as an interested party in accordance with this section and the published notice. The date that written notice of the decision is mailed to the applicant and to an interested person who requested the status of an interested party constitutes the respective date notice of application denial or approval has been provided as referenced in sections 9 and 10 of this Act.

     Section 5. That § 41-10-6 be amended to read as follows:

     41-10-6.   Upon receipt of the application for a shooting preserve operating permit, the Game, Fish and Parks Commission department shall inspect the area described in such the application, the premises, and the facilities. The commission department also shall evaluate the ability of the applicant to operate an area of this character.

     Section 6. That § 41-10-7 be amended to read as follows:

     41-10-7.   If the Game, Fish and Parks Commission finds that department is satisfied that all of the following criteria have been established by the applicant :

             (1)      The applicant for a shooting preserve operating permit proposes to comply with all of the provisions of this chapter;

             (2)      The applicant is financially able to provide the necessary facilities and services to operate a shooting preserve;

             (3)      The preserve shall be open to the general public without restrictions as to race, color, or creed;

             (4)      The operation will not work a fraud upon persons who are permitted to hunt thereon;

             (5)      The operation is not designed to circumvent game laws and regulations;

             (6)      The issuance of the permit will be in the public interest;

             (7)      The applicant is a resident of the state;

             (8)      The applicant does not operate or own any interest in more than two one shooting preserves preserve comprised of a contiguous tract of land of more than one thousand two hundred eighty acres nor more than two shooting preserves each of which are comprised of a contiguous tract of land of one thousand two hundred eighty acres or less ; and

             (9)      The preserve for which an operating permit is requested is at least one one-half mile from any game production area or other publicly owned shooting area , or if located within one mile of such areas, the preserve would not take unfair advantage of wildlife habitat developments or wildlife population existing on those areas, or would not otherwise be detrimental to the public interest ;

the commission department shall approve the application and issue a shooting preserve operating permit for the operation of a shooting preserve on the property described in the application with the rights and subject to the limitations prescribed in this chapter and the commission rules promulgated thereunder pursuant to this chapter . However, the provisions of subdivisions subdivision (7) and (9) of this section do not apply to any shooting preserve licensed pursuant to this chapter, prior to July 1, 1986 , and the provisions of subdivision (9) of this section do not apply to any shooting preserve licensed pursuant to this chapter, prior to July 1, 2004 .

     Section 7. That § 41-10-14 be amended to read as follows:

     41-10-14.   Within the limits set by the Game, Fish and Parks Commission commission, in rules promulgated pursuant to chapter 1-26, the shooting preserve operator may establish his own shooting hours and limitations and restrictions on the age, sex, and number , and type of each game species that may be taken by each person , and he . The operator may establish his own shooting hours, bag limits, and the fees to be charged to his the operator's guests.

     Section 8. That § 41-10-16 be amended to read as follows:

     41-10-16.   Any person licensed to hunt a species as required by this chapter may harvest and legally possess pen raised or wild game shot on a shooting preserve if such the game is tagged as directed by the Game, Fish and Parks Commission commission in rules promulgated pursuant to chapter 1-26 . The provisions of this section relating to issuance of tags and remittance of tag fees, shall be administered by the Department of Game, Fish and Parks department pursuant to commission rules adopted pursuant to § 41-2-18. The cost of each such tag to the shooting preserve operator shall be established by the commission in rules promulgated pursuant to chapter 1-26 .

     Section 9. That chapter 41-10 be amended by adding thereto a NEW SECTION to read as follows:

     If an applicant is denied a shooting preserve operating permit by the department, the applicant may make a written request to the department for a contested case hearing before the commission pursuant to chapter 1-26. The written request shall be mailed to the department by certified mail, return receipt requested, on or before ten days have elapsed from the date that the notice of application denial has been provided and mailed to the applicant by certified mail, return receipt requested.

     Section 10. That chapter 41-10 be amended by adding thereto a NEW SECTION to read as follows:

     If an applicant is granted a new shooting preserve operating permit by the department, any interested person who has requested the status of an interested party and who has presented data, opinion, or arguments in writing to the department pursuant to the requirements in §  41-10-4.5 may make a written request to the department for a contested case hearing before the commission pursuant to chapter 1-26. The written request shall be mailed to the department and the applicant by certified mail, return receipt requested, on or before ten days have elapsed from the date that the notice of application approval has been provided to the interested party.

     Section 11. That ARSD 41:09:01:01 be amended to read as follows:

    41:09:01:01.  Operation plan to be submitted with application. A person submitting an application for a shooting preserve permit shall submit with the application a detailed plan of operation for the proposed private shooting preserve for approval of the commission department .

     Section 12. That ARSD 41:09:01:06 be amended to read as follows:

    41:09:01:06.  Applications - New and renewal -- Appeal process for renewal applications. Applications for new shooting preserves and renewal applications for existing shooting preserves must be received in the Pierre office of the department no earlier than January 1 and no later than March 1 of the year the shooting preserve operation is to begin. The commission shall review all new applications at a regular meeting.

    The director of the Division of Wildlife shall consider all renewal applications. If the director denies a renewal application, the department shall send a notice of denial to the applicant by certified mail, return receipt requested.

    The applicant may appeal the denial of the renewal application by the director by giving notice of appeal and requesting review by the commission. The notice of appeal and request for review must be mailed to the department by certified mail, return receipt requested, within 30 days after the date of the notice of application denial. If the notice of appeal and request for review are made within the 30-day time limit, the commission shall review the renewal application at a regular meeting.

     Section 13. That ARSD 41:09:01:06.01 be repealed.

    41:09:01:06.01.  Notice of public hearing. Upon receipt of a written application for licensing of a shooting preserve located within one mile of a publicly owned shooting area, the department shall schedule a public hearing on the application. The department shall publish the notice of the time and place of hearing once at least 20 days before the hearing in at least three newspapers of general circulation in different parts of the state likely to be affected by the application.

     Section 14. That ARSD 41:09:01:06.02 be repealed.

    41:09:01:06.02.  Issuance of permit for shooting preserve located within one mile of publicly owned shooting area. At the public hearing on an application for issuance of a permit for a shooting preserve located within one mile of a publicly owned shooting area, the commission shall receive oral or written comments from the public and a written report from the division of wildlife. Both the public comments and the report from the division of wildlife shall be based on the following information:

    (1)  Existing or potential wild pheasant population on the publicly owned shooting area;


    (2)  Potential for disease transmission from an adjoining preserve to wild pheasants on the publicly owned shooting area;

    (3)  Extent of habitat developments on the publicly owned shooting area specifically designed to enhance a population of wild pheasants;

    (4)  Information related to the management of other wildlife species or recreational opportunities on the publicly owned shooting area which may be negatively affected by an adjoining shooting preserve; and

    (5)  Any information which may indicate detriment to the public interest.

    The report of the division of wildlife shall also address the factors listed in SDCL 41-10-7 and shall include the division's recommendation for action on the application. The commission shall consider the factors listed in SDCL 41-10-7, the comments from the public, and the report and recommendation of the division of wildlife in making its decision on the application.

     Section 15. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval."


Moved by:    Tornow
Second by:    Hunt
Action:    Prevailed by voice vote.

MOTION:     AMEND HB 1049

1049re
     In the previously adopted amendment (1049ra), in section 6, delete subdivision 41-10-7(9) and insert:

"

             (9)    The preserve for which an operating permit is requested is at least one one-half mile from any game production area or other publicly owned shooting area, or if located within one one-half mile of such areas, the preserve would not take unfair advantage of wildlife habitat developments or wildlife population existing on those areas, or would not otherwise be detrimental to the public interest;"

Moved by:    Tornow
Action:    Was not acted on.


MOTION:     AMEND HB 1049

1049rb
     In the previously adopted amendment (1049ra), in section 6, delete all underscored material in subdivision 41-10-7(9) and remove the overstrikes wherever they occur, thus restoring subdivision (9) to its existent form.

Moved by:    Murschel
Second by:    Roberts
Action:    Prevailed by roll call vote.(7-5-1-0)

Voting Yes:    Gillespie, Hennies, Michels, Murschel, Roberts, Tornow, Cutler

Voting No:    Haley, Jensen, O'Brien, Van Norman, Hunt

Excused:    Sebert

MOTION:     AMEND HB 1049

1049rc
     In the previously adopted amendment (1049ra), in section 6, delete all underscored material in the last sentence of §  41-10-7 and remove the overstrikes wherever they occur, thus restoring the last sentence of §  41-10-7 to its existent form.

Moved by:    Haley
Second by:    Michels
Action:    Prevailed by voice vote.

MOTION:     AMEND HB 1049

1049rd
     In the previously adopted amendment (1049ra), delete section 14.

Moved by:    Michels
Second by:    Hunt
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1049 AS AMENDED

Moved by:    Murschel
Second by:    Hunt
Action:    Prevailed by roll call vote.(12-0-1-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Michels, Murschel, O'Brien, Roberts, Tornow, Van Norman, Hunt, Cutler

Excused:    Sebert

MOTION:     ADJOURN

Moved by:    O'Brien
Second by:    Hunt
Action:    Prevailed by voice vote.

MOTION:     ADJOURN

Action:    Prevailed by voice vote.

Diane Mellan

____________________________

Committee Secretary
Joni M. Cutler, Chair

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