GUIDED INTO JEOPARDY: HOW SOUTH DAKOTA'S FAILURE TO REGULATE THE ACTS OF HUNTING OUTFITTERS CAN INFLICT CRIMINAL LIABILITY AND BODILY HARM ON CLIENT-HUNTERS.

• Author: Merrill, Samantha J.

1. INTRODUCTION

   Hunting and fishing contribute billions of dollars to the national economy.' Nationwide, ninety million United States residents participate in outdoor or wildlife-related activities, spending $145 billion annually. (2) Each year, some of those ninety million hunters make their way to South Dakota. (3) South Dakota's natural resources make it ideal for hunting, fishing, and other outdoor recreation. (4) Based on a study commissioned in 2016, residents and non-residents alike spent a total of 18.6 million days enjoying these resources in South Dakota, spending $ 1.3 billion to hunt, fish, view wildlife, or otherwise enjoy South Dakota's many state and national parks. (5)

   Each dollar brought in by hunters and fishers boosts the businesses geared towards accommodating those activities, from small local businesses to manufacturers of hunting-related goods. (6) In fact, the $1.3 billion from hunting generates another $1.9 billion in economic activity for South Dakota in the form of revenue from restaurants, hotels, and other hospitality-based industries. (7) This form of income makes outdoor tourism an essential part of the South Dakotan economy. (8) Specifically, hunting and fishing bring in most outdoor tourism revenue, with $683 million attributed to hunting and $271 million attributed to fishing. (9) Even during the pandemic, with tourism losses that will substantially affect South Dakota for years, (10) outdoor recreation activities increased in popularity. (11)

   As hunters enter South Dakota, non-residents of all experience levels often seek guides to have a better hunting experience. (12) This demand creates eighteen thousand full and part-time jobs, hunting-related and otherwise, each hunting season. (13) It also creates competition among guiding services and outfitters to get hunting or fishing clients to support their businesses. (14) Hunting outfitters often compete through the level of accommodations and their success in getting the goal of every hunt--a game animal. (15)

   Hunting outfitters and guides try their best to get their clients a trophy worth bragging over. (16) However, some resort to criminal activity to ensure that client-hunters leave with a memorable take. (17) Unfortunately, these actions by outfitters expose not only themselves to criminal liability but also their client-hunters. (18) Because federal law requires that there be, for the most serious violations, a "knowing" violation of cither the Lacey Act (19) or the Migratory Bird Treaty Act, (20) it is practically impossible for even an inexperienced client-hunter to escape the criminal liability. (21) Thus, some client-hunters who paid a guide to lead them through a legal hunt may end up criminally indicted if, unbeknownst to them, a guide advises illegal hunting practices. (22)

   In addition to the risks imposed by criminal outfitters, there are health and safety risks that client-hunters are exposed to while hunting. (23) While hunting, client-hunters can be exposed to bouts of intense weather, unfamiliar and hard-to-navigate terrain, dangerous animals, and, most obviously, deadly weapons. (24) Thus, having a guide knowledgeable about basic first aid and other safety measures can be essential to a hunter's wellbeing and ability to make it through the excursion unharmed. (25) Despite these dangers to client-hunters, South Dakota allows anyone to guide hunts or operate a hunt outfitting business. (26)

   This comment will outline the dangers to client-hunters and the economic devastation that could follow if outfitters arc allowed to continue to act unlicensed and unregulated. (27) First, the comment will go through the common charges under the Lacey Act and the Migratory Bird Treaty Act in sections II.A and II.B to understand the potential criminal liability. (28) To aid in understanding these consequences, each section discussing these laws will also include examples of prosecutions brought under these acts. (29) Then, after outlining the criminal liability guides can expose their client-hunters to, the comment will explain the physical danger faced by client-hunters who hunt with an unlicensed, untrained hunting guide in section II.C. (30)

   Next, in section III, the comment will discuss South Dakota's specific hunting regulations and the limited control of hunting outfitters. (31) This approach will be contrasted with Colorado and Wyoming's hunting regulations, in addition to the rules of the four representative sovereign tribes within the Oceti Sakowin Nation (32) within South Dakota that require licensing of hunting outfitters and guide training. (33) Finally, in section IV, this comment will outline potential regulations for South Dakota to consider implementing to protect its economy and the client-hunters. (34)

2. DANGERS TO CLIENT-HUNTERS

   To understand the dangers risked by client-hunters, it is crucial to know the criminal and the potential health and safety consequences their untrained, and sometimes criminal, guides expose them to. (35) Therefore, this section will first discuss the federal laws that these client-hunters arc often charged with, the Lacey Act and the Migratory Bird Treaty Act in parts A and B. (36) Then, part C will discuss the health and safety concerns that arise while hunting. (37)

   1. LACEY ACT

      In 1900, the Lacey Act ("the Act") became the first federal law designed to protect wildlife. (38) This law helps states enforce their wildlife protection policies in addition to promoting actions that "conserve and restore wildlife and birds in the United States." (39) The Lacey Act imposes criminal and civil liability on those who act in contradiction to the Act. (40) This Act criminalizes a great deal of conduct relating to fish, wildlife, and plants; (41) however, this comment will only focus on a small subset of Lacey violations. (42)

      The Lacey Act makes it unlawful to "import, export, transport, (43) sell, receive, acquire or purchase any... wildlife... taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law." (44) The act also criminalizes the use of interstate commerce for any wildlife taken, possessed, transported, or sold in violation of any state or foreign law. (45) The Lacey Act is also explicit in that providing any consideration for guiding, outfitting, other services, or a hunting or fishing permit constitutes a sale or purchase because the cost of the hunting outfitter services logically includes the "wildlife that is the ultimate object of the hunt." (46)

      A felony violation of the Act is a two-prong analysis. (47) Specifically, the prohibited conduct "must be committed in the context of commercial activity [and] the market value of the wildlife must exceed $350." (48) If one of these prongs is not present, it becomes a misdemeanor violation. (49)

      Thus, in the hypothetical case of a person who kills an elk in violation of Montana law without the use of a paid guide and transports the animal to another state, no felony violation has occurred absent proof of some commercial activity and wildlife market value in excess of $350. However, if the same hunter pays $500 for the services of a guide, both the commercial conduct element and wildlife market value element are satisfied, and a felony has been committed. (50) The hunter does not need to purchase both guiding services and a hunting license to violate the Act. (51) Instead, the Lacey Act prohibits the illegal sale of wildlife "as long as it is an integral part of the interstate transfer of illegally taken wildlife." (52) However, the transaction's order does not matter so long as the criminal action is "directly related to the transaction." (53) The transaction can occur after the hunt is complete and the illegal take is taken back across state lines where the client-hunter lives. (54) However, this can also happen when one crosses into or off of tribal land, which can be complicated in South Dakota. (55)

      Due to the nine reservations within South Dakota, just over twelve percent of South Dakota is Indian Country. (56) In other words, approximately six million acres within South Dakota are actually tribal land. (57) These six million acres create several complex jurisdictional issues. (58) "[S]ales of [']surplus lands['] and the practice of fee patenting and selling allotted lands have transformed many Indian reservations from contiguous territories into 'checkerboards' of trust land, Indian fee patent land, and non-Indian land." (59) This checkerboard can make it difficult, though not impossible, for those unfamiliar with South Dakota to understand whether they are hunting on tribal or state ground. (60) Thus, client-hunters who illegally took game, relying on their guide, can be led across Indian country and transport wildlife within the meaning of the Lacey Act. (61) Dangers also arise when a client-hunter enters onto Indian country with a valid state hunting license and takes wildlife in Indian country. (62) This take violates the Lacey Act because, even though the state granted the client-hunter a license, the specific sovereign tribe did not, which means the client-hunter took wildlife in violation of tribal law. (63)

      The checkerboard caused by the United States' assimilationist policies towards Native Americans causes out-of-state hunters to rely heavily on their guides and suffer federal criminal consequences. (64) Generally, client-hunters who violate an underlying state game law are often charged with criminal violations under state, rather than federal, law for their actions. (65) Sovereign tribes, however, do not have the option to punish non-Indians criminally and cannot prosecute the non-Indian client-hunters for the harm they caused the tribe. (66) Thus, federal prosecution is the only avenue for sovereign tribes to punish the client-hunters criminally, who, relying on their guide, violated tribal hunting laws. (67)

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