on Briefs March 21, 2016.
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA. THE HONORABLE VINCENT A.
NEIL ERICKSON, Pro se, petitioner.
REED T. MAHLKE, Helsper, McCarty, Mahlke & Kleinjan, P.C.,
Brookings, South Dakota, Attorneys for respondent and
Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
KERN, Justices, concur.
[¶1] Austin Earley appeals from a circuit
court order granting Tyler Erickson a permanent order of
protection. Earley contends that the circuit court abused its
discretion by granting the protection order and that the
protection order violates his First Amendment right to free
speech. We affirm.
and Procedural History
[¶2] Earley and Erickson are both hunters.
The dispute between the two, which ultimately resulted in
this protection order, is primarily over hunting land. Both
men are in their mid-thirties.
[¶3] Erickson secured permission from Jim
and David Grommersch to hunt on their property. In February
of 2015, Erickson went to the Grommersches' property to
check one of his trail cameras. On his way to the property,
Erickson observed Earley's vehicle traveling in the
opposite direction. When Erickson arrived on the property he
parked his vehicle, but before he got out, he saw
Earley's vehicle approaching him through a field at a
high rate of speed. Earley pulled alongside of Erickson's
vehicle and began shouting obscenities at Erickson. Among
other things, Earley told Erickson, " We are coming for
you. You don't have permission to be on this
property." Earley eventually told Erickson to " get
all your shit and get out." Erickson was afraid to get
out of his vehicle. However, when Earley backed his vehicle
away approximately 50 yards, Erickson exited his vehicle and
removed his trail camera. Earley watched from his vehicle.
Earley followed Erickson to his second trail camera and
watched as Erickson removed the second trail camera. Earley
followed Erickson off the Grommersches' property for a
little over one mile and then turned around.
[¶4] Immediately following the incident,
Erickson contacted the Grommersches. The Grommersches told
Erickson that they did not know Earley and that Earley did
not have permission to be on the Grommersches' land. At
the Grommersches' request, Erickson contacted law
enforcement about the incident.
[¶5] A similar incident happened in July of
2015. Erickson parked on a public gravel road approximately
one mile west of the Grommersches' property " to
look over the land" for deer with his binoculars. Once
again, Earley pulled alongside of Erickson's vehicle and
began yelling obscenities at Erickson. Among other things,
Earley told Erickson, " We are coming for you. You
better watch your ass this fall. There is [sic] five of us
coming for you." Earley " squealed his tires and
pulled away, yelling and screaming and cursing."
Erickson did not report the incident.
[¶6] A month later, in August of 2015, the
Grommersches directed the sheriff to serve a no trespass
order on Earley regarding their land. On the same day he was
served, Earley called Erickson and said, " Get your shit
out of Gas 'N' Mor, and you have one week and
don't ever step foot in there again."  Before
hanging up the phone, Earley stated, " There are six of
us, and we are coming for you." Erickson contacted law
enforcement about the three incidents and filed a petition
for a protection order.
[¶7] At the hearing for the protection
order, Erickson testified about the three incidents. In
addition, Erickson was concerned that Earley had somehow
learned of other hunting areas Erickson used and that Earley
contacted those landowners and " bad-mouthed"
Erickson. David Grommersch testified that he did not know
Earley, that Earley did not have permission to hunt on his
land, and that he had Earley served with a no trespass order
because Earley placed hay bales, mineral blocks, antler
traps, and other items on the Grommersches' property.
Earley testified on his own behalf. Earley admitted that he
told Erickson, on multiple occasions, " [t]here is [sic]
four or five of us coming for you," but denied that
these were threats. Earley framed the incidents as " two
grown men having a politically incorrect debate." The
circuit court found Erickson's version of ...