(dissenting).
As indicated in the majority opinion, in affirming the conviction the circuit court held that there was sufficient evidence to find that defendant had taken possession of the can and had then disposed of it in a manner that constituted a violation of SDCL 34A-7-6. Given the circumstances of the case, I agree that defendant violated the statute. I would not hold, however, that the origin of litter is always irrelevant in determining whether one is guilty of violating the statute. SDCL 34A-7-6 provides in pertinent part:
No person shall dump, deposit, drop, throw, discard, leave, cause or permit the dumping, depositing, dropping, throwing, discarding or leaving of litter upon any public or private property in this state, or upon or into any river, lake, pond, or other stream or body of water in this state[.]
In the light of the purpose of this statute, which is to prevent the fouling of our public and private lands and waters, one can take action vis-a-vis existing litter that while literally constituting an act in violation of the statute, would not fall within those acts sought to be proscribed by the statute. For example, the statute makes it unlawful to leave litter upon any public or private property or body of water, but unless we are willing to hold that the statute imposes an affirmative duty upon one who chances upon existing litter to transport it to an appropriate waste receptacle, I hardly think that it could be contended that defendant would have been guilty of violating SDCL 34A-7-6 had he merely suffered the can to remain where he found it. Likewise, most of us who have from time to time fished in the lakes and streams of this *205state have found it necessary to police the shoreline area by collecting litter left behind by others and then placing it in a waste receptacle, or, if one is not available, in a non-hazardous location (indeed, no doubt many of us have from time to time hauled home sacks of litter). Assuming that no waste receptacle is available in the area, is one who collects the litter in his immediate fishing area and then places it in a non-hazardous position guilty of violating the statute? I would hold not.
To hold that one who leaves undisturbed or who collects and then leaves in a nonhazardous location litter left by third parties is not guilty of violating SDCL 34A-7-6 does not foreclose an interpretation of that statute that would render defendant’s conduct unlawful. Defendant testified that he moved the can from where it was sitting because it interfered with his physical movement in attending to his fishing line and because it reflected into his eyes the light from his lantern. Had defendant merely moved the can to a location no more physically or aesthetically offensive vis-a-vis the general public than it was in its original location, we would be hard-pressed to hold that he was guilty of violating the statute. By throwing the can onto the rocks, however, defendant did more than to, in his words, merely “rearrange the existing litter.” Rather than to take what in effect might have constituted defensive action with respect to the existing litter, he took it upon himself to compound the harm caused by the previous litterer. By so doing, he committed an act that to a person of average understanding would be deemed prohibited by the statute.
I agree wholeheartedly with Chief Justice Fosheim that defendant’s act in throwing the empty can onto the rocks was not a small or trifling matter. If throwing one can onto the rocks is legally de minimus, what about two? Would smashing one glass bottle on the rocks constitute a violation of SDCL 34A-7-6? Are our conservation officers to be restricted to passively observing those who litter little? There may indeed be technical violations of SDCL 34A-7-6 that are so minor that, like the fifty-eight-mile-per-hour driver, they warrant only a warning or a resigned shrug of the shoulders on the part of law enforcement officers. A burnt match or a frayed toothpick is not to be equated with an aluminum can or a glass bottle, however, and the majority opinion makes a serious error in treating so lightly an act that manifests a contempt for one’s fellow citizens and a blatant disregard for the safeness and attractiveness of our public recreational areas.
I would affirm the judgment of conviction.