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Duerre v. Hepler

Supreme Court of South Dakota

March 15, 2017

THAD DUERRE; CLINT DUERRE; ROBERT DUERRE; and LARON HERR, Plaintiffs and Appellees,
v.
KELLY R. HEPLER, in his official capacity as Secretary of the State of South Dakota Game, Fish and Parks Department; SOUTH DAKOTA DEPARTMENT OF GAME, FISH AND PARKS; STATE OF SOUTH DAKOTA; and a class of individuals, similarly situated, who have used or intend to use the bodies of water described in this complaint without the permission of the owners of the property which the waters lie, Defendants and Appellants.

          ARGUED ON NOVEMBER 8, 2016

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT DAY COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER Judge

          RONALD A. PARSONS, JR. SHANNON R. FALON of Johnson Janklow Abdallah, Reiter & Parsons LLP Sioux Falls, South Dakota and JACK HIEB ZACHARY W. PETERSON of Richardson, Wyly, Wise Sauck & Hieb, LLP Aberdeen, South Dakota Attorneys for plaintiffs and appellees.

          MARTY J. JACKLEY Attorney General ANN F. MINES BAILEY Assistant Attorney General RICHARD J. NEILL Special Assistant Attorney General Pierre, South Dakota Attorneys for defendants and appellants.

          WILBUR, Justice

         [¶1.] Multiple landowners in Day County, South Dakota brought suit against the South Dakota Department of Game, Fish and Parks (GF&P), Secretary Jeffrey Vonk, the State of South Dakota, and certain unnamed defendants for declaratory and injunctive relief concerning the public's right to use the waters and ice overlying the landowners' private property for recreational purposes. The circuit court granted the landowners' request to certify a defendant class to include individuals who have used or intend to use the floodwaters located on the landowners' property for recreational purposes. The court appointed the Secretary of GF&P as the class representative. The parties filed cross-motions for summary judgment. After a hearing, the circuit court entered declaratory and injunctive relief against the named and class defendants. Defendants appeal. We affirm in part, reverse in part, and remand.

         Background

         [¶2.] Thad Duerre, Clint Duerre, Robert Duerre, and Laron Herr (Landowners) own land in Day County, South Dakota. In 1993, excessive rainfall submerged portions of their land. The submerged land includes Jesse Slough, also known as Jesse Lake, and Duerre Slough, also known as Duerre Lake. Jesse Slough comprises approximately 1, 175 acres, and Duerre Slough comprises approximately 1, 495 acres.

         [¶3.] In Parks v. Cooper, we noted that, in the late 1800s, the United States Surveyor General's Office commissioned surveyors to survey bodies of water in South Dakota. See 2004 S.D. 27, ¶ 2, 676 N.W.2d 823, 824. "The 1868 instructions, effective at the time the areas in dispute were surveyed, provided that if a body of water was: (a) 40 acres or less; or (b) shallow or likely in time to dry up or be greatly reduced by evaporation, drainage, or other causes, the surveyors should not draw meander lines around that body of water but should simply include the water body and its bed in their survey as part of the lands available for settlement." Id. ¶ 2. Although Duerre Slough and Jesse Slough are sizeable waters now, these sloughs did not meet the criteria to be considered meandered when originally surveyed. So the landowners own the lakebeds under the non-meandered sloughs. Nonetheless, in Parks, we held that all waters, including non-meandered waters, are public property. See 2004 S.D. 27, ¶ 46, 676 N.W.2d at 839.

         [¶4.] According to the Landowners, the general public began to use the sloughs for recreational purposes in 2001. Members of the public would set up villages of ice shacks, drive their vehicles on the ice, camp on the ice and, according to the Landowners, fire guns, blare music, operate loud machinery, get drunk, litter, cookout, etc. The Landowners claimed that, on certain days in the spring and fall, over 200 boats would launch into the waters. In the winter, over 70 ice shacks and vehicles would be present. Although members of the public generally accessed the waters legally via county roads, the Landowners reported what they believed to be trespassing to GF&P. They claimed that GF&P responded that the public could use the waters so long as they entered the waters legally.

         [¶5.] In August 2014, the Landowners brought suit for injunctive and declaratory relief against the GF&P, Secretary Vonk, the State of South Dakota, and individual defendants who have used or intend to use the floodwaters located on the Landowners' property for recreational purposes. In April 2015, Secretary Kelly Hepler replaced Secretary Vonk, and the circuit court entered an order substituting Secretary Hepler for Secretary Vonk. The Landowners asked the circuit court to certify the defendant class as all people who enter or use, have entered or used, intend to enter or use, or encourage others to enter or use the bodies of water overlying the Landowners' private property. In response, the State argued that the Landowners did not meet their burden of proof to warrant certification under SDCL 15-6-23 (Rule 23).

         [¶6.] The court held a hearing and entered findings and conclusions and an order certifying a defendant class under Rule 23(a) and (b)(1). The court limited the certification "to declaratory and injunctive relief sought prohibiting public entrance and use of the water overlying the Plaintiffs' private property in the absence of Legislative authorization." The court identified the certified class as:

All individuals who have entered or used, intend to enter or use, or have permitted others to enter or use the bodies of water that overlie private property owned by the Plaintiffs as detailed on Exhibits A and B to the Plaintiffs' Complaint for Declaratory and Injunctive Relief.

         The court designated Secretary Hepler as the class representative.

         [¶7.] The parties filed cross-motions for summary judgment. The Landowners asked the circuit court to declare that, in the absence of legislative authorization, the State defendants, class members, and public have no legal authorization to enter or use the water and ice overlying the Landowners' private property. The Landowners also asked the circuit court to declare that the State defendants "may not adopt or enforce any policy allowing or encouraging members of the public to enter or use nonmeandered bodies of water, including water or ice located on the Plaintiffs' private property, for recreational purposes including hunting and fishing." In regard to injunctive relief, the Landowners sought to enjoin the State defendants, the class, and members of the public from entering or using the water or ice overlying the Landowners' private property for recreational purposes without the Landowners' permission. And the Landowners requested that the court enjoin the State defendants "from encouraging or permitting the entry or use of bodies of water or ice on the Plaintiffs' private property . . . or adopting or in any way enforcing any policy allowing members of the general public to enter or use water or ice located on the Plaintiffs' private property for any recreational purpose including hunting and fishing."

         [¶8.] The State responded in its cross-motion for summary judgment that the Landowners have no right to exclude the general public from using the waters overlying private land because "all waters within South Dakota, not just those waters considered navigable under the federal test, are held in trust by the State for the public." See Parks, 2004 S.D. 27, ¶ 46, 676 N.W.2d at 839. The State also asserted that GF&P acted within its authority when it allowed the public to use the waters overlying the Landowners' private property so long as the public accessed the waters legally. The State relied on GF&P's and other State agencies' broad authority to manage the waters in South Dakota.

         [¶9.] After a hearing, the circuit court granted the Landowners declaratory and injunctive relief. The court did not grant the broad relief requested by the Landowners. In regard to the Landowners' request for declaratory relief, the court held:

(a) Pursuant to Parks v. Cooper, 2004 S.D. 27, 676 N.W.2d 823, in the absence of authorization from the Legislature, members of the general public are not legally authorized to enter or use any of the water or ice located on the Plaintiffs' private property for any recreational use such as hunting or fishing without the permission of the landowner.

         The court denied any further declaratory relief. The court also entered a permanent injunction in favor of the Landowners:

(a) Prohibiting the Defendants, the certified Class, and members of the public from entering or using for any recreational purpose, including hunting and fishing, the bodies of water or ice located on the private property owned by the Plaintiffs without permission of the landowner.
(b) Prohibiting the Department of Game, Fish and Parks and other Defendants from facilitating access to members of the public to enter or use the bodies of water or ice on the Plaintiffs' private property for any recreational purpose, including hunting and fishing, in the absence of permission from the landowner or authorization from the Legislature.

         The court denied the Landowners further injunctive relief and denied the State's cross-motion for summary judgment.

         [¶10.] The State appeals asserting the following issues for our review:

1. Whether the circuit court erred in certifying the class, naming Secretary Hepler as the class representative, and compelling the Attorney General's Office to represent private individuals.
2. Whether the circuit court erred in finding that the waters held in public trust could not be used for recreational purposes under the public trust doctrine and existing laws.
3. Whether the circuit court erred in granting an injunction that prohibits the use of waters held in public trust for recreation by the public without express authorization from the Legislature but allows private landowners the ...

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