South Dakota v. Bourland Page 16

South Dakota v. Bourland general information

Media for South Dakota v. Bourland

Audio Transcription for Oral Argument - March 02, 1993 in South Dakota v. Bourland

James A. Feldman:

I think the 1954 act was a division of the property rights in the land, of the bundle of sticks of ownership of that land as to who got what uses after that.

I don't think that anyone... and I think this is what the district court-and the court of appeals said.

I don't think anyone was thinking about continuing regulatory authority over the land.

Sandra Day O'Connor:

Well, do you say that the Federal Government would have the right to require hunting and fishing licenses from people?

James A. Feldman:

I think that... actually, I think that with... it may be a little bit of a complex answer.

I think with respect to the water areas, I think the Corps would have a hard time trying to force people to obtain, say, some kind of Federal license to go fishing in light of the language that says that people shall be able to do that without charge.

I think that was directed at the Corps' authority as to the... what it was supposed to do with this land and how it was supposed to make it open for recreational purposes.

Sandra Day O'Connor:

So, you don't take the position that the Federal Government could require licensing.

James A. Feldman:

Well, but I do think outside... I think aside from that one proviso, I think with respect to the rest of the land area and with respect to other sorts of regulation of the land, I think the Corps does have authority to do what it deems necessary.

It is given the authority in the Flood Control Act to operate recreational--

Sandra Day O'Connor:

Well, what's the meaning of the language giving the States whatever regulatory authority--

James A. Feldman:

--I think the State may have also have regulatory authority over the land.

At least the State may also have the authority to regulate the hunting and fishing on the land.

William H. Rehnquist:

--This is an incredibly muddled situation that your answer suggests.

James A. Feldman:

Well, I guess... let me try to clarify it for you.

I think with respect to this land, essentially the Corps doesn't... has... never has tried to impose hunting or fishing licenses on the land, and under Corps regulations, State and local regulations, which would include both State and tribal regulations in this case, would apply to this land.

And if someone--

Antonin Scalia:

How do we know it would include tribal?

I was interested in that.

Is the regulation that says all other Federal, State, and local laws and regulations remain in full force and effect where applicable... does that include tribal laws?

James A. Feldman:

--Yes, I would take the word local to mean--

Antonin Scalia:

You would take it.

Would the Corps of Engineers take it?

James A. Feldman:

--Yes.

Antonin Scalia:

I notice that they're not on your brief.

The Department of Interior is, but not the Corps of Engineers.

Is that significant in any respect?

James A. Feldman:

I wouldn't attribute significance to that.

I think--

Antonin Scalia:

Can I assume that everything you argue is agreed to by the Corps?