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11 Great Plains Nat. Resources J. [i] (2006-2007)

handle is hein.journals/gpnat11 and id is 1 raw text is: University of South Dakota School of Law GREAT PLAINS NATURAL RESOURCES JOURNAL VOLUME XI FALL/SPRING 2006-07 NUMBERS 1 & 2 LEAD ARTICLE Road Hunting and Regulatory Takings: An Examination of the South Dakota Supreme Court's Opinion in Benson v. State ................................... 1 Vincent M. Roche Benson v. State was the most recent title fight between owners of private land and the hunting public over a valuable South Dakota resource that is becoming increasingly scarce: hunting opportunities. A thin majority of the Benson court held that the South Dakota legislature's recent amendment of S.D.C.L. § 41-9-1.1 to provide that shooting game birds flushed from the public right-of-way known as the section line easement, even if those birds are in flight over private property, is not a taking. The result reached in Benson was, at least for the moment, a facial victory for the hunting public. The state of the law post-Benson, however, may well make a rematch inevitable. Benson was not a normal takings case, however, because the section line easement places an implied limitation on the ownership of all private property in South Dakota. The Benson court and the parties should have more fully addressed the threshold question that Lucas v. South Carolina Coastal Council requires a court to answer in every takings case-namely, whether the property right allegedly taken belonged to the plaintiff in the first place. If that question had been asked and answered, the Benson court would have been faced with the familiar task of defining the scope of an easement, and would have concluded that S.D.C.L. § 41-9-1.1 (2) is not a taking. Such an approach would have produced a more workable and equitable framework for policing future takings disputes when the scope of the section line easement is at issue. CASENOTES State of New York v. Environmental Protection Agency: U.S. Court of Appeals Rejuvenates NSR Mandating That EPA Enforce Emission Standards As Congress Intended ........................................................... 26 Kylie Dummett While the EPA interpreted the definition of modification many times over a number of years, the Agency's 2002 interpretation directly contradicted prior EPA interpretations by exempting from New Source Review program (NSR) those sources that replaced plant components if the cost of each modification did not exceed twenty percent of the entire unit's replacement value. The change was a considerably expansive amendment to the previous exemption granted by the EPA under the Routine Maintenance, Repair and Replacement Exclusion from NSR requirements and ignited challenges from state governments, industry entities, and environmental watchdogs. The challenges culminated in State of New York v. Environmental Protection Agency.

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