Anglers plan to fight Day County trespassing citations

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Farm Forum

A group of South Dakota anglers cited for unknowingly trespassing while ice fishing in Day County this winter is taking the case to court.

Zachary Hunke of Codington County said he and others plan to contest tickets issued by the Day County State’s Attorney’s Office.

Hunke said he and a group of friends went ice fishing on Jan. 13 on a body of water that has an injunction on it. The injunction bars the public from using it for recreation without permission from the landowner. But the anglers didn’t know about the injunction.

“We were in Day County and on one of our really good friend’s family’s land, and it adjoins a body of water. It’s got some of his land is underneath the water and some on top,” Hunke said.

“We called the Game, Fish and Parks prior to going out there and spoke with them. We got onto the ice (legally and) basically were fishing all over once we had gotten onto the ice,” he said.

He said the group followed all the steps for fishing on private property listed in the GFP fishing handbook.

“We went out there and started fishing and a couple game wardens showed up. I’m guessing they were called in by the neighbor. They said the neighbor was a little upset. They said you’re completely legal, you guys can continue to fish, and a month later the Day County state’s attorney sent us a letter charging us with unknowingly trespassing,” Hunke said.

His court date is June 8. And while the fine is about $200, he said he is willing to pay up to $3,500 in attorney fees to fight the citation.

“We called the Game, Fish and Parks. We talked to them on site,” Hunke said. “How do we know who we are supposed to talk to? According to the handbook and current law, we are legal to fish. So we’re not quite sure what the case is that the state has. And how am I supposed to know if I called the Game, Fish and Parks and they say to go ahead? That’s the reason why I’m fighting this thing.”

According to Mark Ermer, GFP regional fisheries manager in Webster, the general direction his department gives to people is that if they can get on the water by legal means, they can go anywhere on the lake. But he said some areas do have injunctions barring recreational use by the public.

Injunctions have been put in place by courts as a temporary fix while until the Legislature crafts a clear set of rules about how public bodies of water can be used for recreation, Ermer said.

Day County State’s Attorney Danny Smeins directed questions about the case to Aberdeen attorney Jack Hieb.

Hieb, who represents a number of landowners in Day County, said Hunke and his friends were purposely misled by GFP officials who are choosing to ignore a state supreme court ruling that left the decision about how non-meandering waters can be used to legislators.

Hieb said some of his clients have filed a class action lawsuit that put injunctions preventing recreational use on his clients’ flooded land. So far, his clients have prevailed in the legal wrangling, he said.

The GFP appealed an injunction Thursday, so the case will go to the supreme court, and the ruling could set a precedent, Hieb said.

“On these non-meandered bodies of water, the people don’t have permission to use them for recreational purposes,” he said.

And so continues a debate that started when heavy flooding in the 1990s covered a lot of land in Day County and beyond.

Hieb said landowners have the right to retain their property as private, regardless of whether it floods or not, and that GFP officials are wrong to tell the public that if they can legally access the waters, they can hunt or fish on them. And, Hieb said, GFP officials know they are wrong.

“At a minimum it’s irresponsible because you are leaving people with a false sense of security, and I don’t blame anybody for trusting a state official who is supposed to know and who is supposed to be telling them the truth about things,” Hieb said.

That’s why he believes people in situations such as Hunke’s are being wrongfully charged. He’s sympathetic to the situation.

“I know full well they’ve been told it’s OK. You shouldn’t ever be in a position where somebody in a badge looks at you and says it’s perfectly legal for you to do this, and then turn around and get charged criminally for it later,” he said.

Without a supreme court ruling or a legislative decision, any landowner who wants recreational use prohibited on flooded land has to hire an attorney and go through the court process to get an injunction, he said.

According to state Rep. Dennis Feickert, D-Aberdeen, having the Legislature make a decision on the matter is easier said than done.

“We had a bill two years ago that actually would have designated the boundaries under the water (to state it) was actually was owned by private landowners. I can’t remember all the specifics, but it got quite a ways through the process, then it got hung up in the end basically over the fact that the argument — and the ongoing argument — that the water does not touch the dirt. So if you’re on the water, you can access it off the right a way or you can go over the top of that land that’s owned by someone else and get onto the main body of water,” Feickert said.

He said he understands the frustrations of Day County landowners who feel their water-covered land should not be open to the public. Some members of the public have behaved in a disrespectful manner towards the landowners, he said.

“And it only takes one or two of those situations to irritate people. But you also have to remember from a revenue generated standpoint, it generates a lot of sales tax revenue,” Feickert said.

“A lot of fisherman come from out of state, so that can be a sensitive issue. I guess I’m disappointed with the South Dakota Game, Fish and Parks that something more hasn’t come out of their effort to actually work with some of the individual landowners that are especially annoyed with all this,” Feickert said.

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