Duerre v. Hepler

Duerre v. Hepler, 892 N.W.2d 209 (S.D. 2017) (holding that (i) members of the general public cannot enter and use any of the water and ice on private property for recreational purposes absent legislative authorization, and (ii) the Department of Game, Fish, and Parks cannot facilitate access to the water and ice on private property for recreational purpose absent legislative authorization).

Thad Duerre, Clint Duerre, Robert Duerre and Laron Herr (“Landowners”) own two non-meandered sloughs in Day County, South Dakota.  The Landowners reported to the South Dakota Department of Game, Fish, and Parks (“GF&P”) that the public was trespassing on their private property and using the sloughs for recreational purposes.  The GF&P responded that the public could use the waters if they entered legally.  Landowners sued the State, the GF&P, and the class of persons who used or intended to use the waters in circuit court for declaratory and injunctive relief.  The parties filed cross-motions for summary judgment.

The Landowners asked the circuit court to declare that the public has no legal authorization to use or enter the non-meandered waters on their private property absent legislative authorization.  They also asked the circuit court to declare that the State may not adopt, enforce, or encourage the public to enter or use the sloughs for recreational purpose.  The Landowners sought to enjoin the State and class from using the sloughs or adopting a policy allowing members of the public to use the sloughs for recreational purpose.

The State asserted that the Landowners had no right to exclude the public from using the sloughs because all waters within South Dakota are held in trust by the State for the public.  Additionally, they asserted that GF&P was authorized to allow the public to use the waters so long as they were accessed legally.

The circuit court granted a less broad version of the Landowners’ declaratory relief, holding that in the absence of legislative authority, the public may not enter or use the waters or ice located on the private property for recreational use.  The circuit court also entered a permanent injunction prohibiting the public from entering or using the waters or ice located on the private property for recreational purposes without permission from the Landowners and prohibiting the GF&P and others from facilitation access to enter or use the waters or ice for recreational purposes.  The circuit court denied the State’s cross-motion for summary judgment.

The State appealed to the Supreme Court of South Dakota.  The State first contended that the circuit court erred in declaring that the public could not use the private non-meandered waters for recreational purposes.  The State argued that the public has a right to use South Dakota’s waters for a beneficial purpose and that recreational use is beneficial.

In Parks v. Cooper, the court found that recreational use of non-meandered lands may be a beneficial use of water, but the Legislature had failed to answer whether recreation was, in fact, a beneficial use.  The Court declined to decide this question because the Legislature did not necessarily intend for private non-meandered waters to be open for public recreational activities.  The Court affirmed the circuit court’s decision to grant declaratory relief, but it remanded for modification of the language.  The modified language provides that it is the Legislature’s responsibility to decide whether the public can access private waters for recreational activity, but that there is currently no legislative authorization that allows the public to enter or use the private waters or ice for recreational purposes.

Second, the State contended that the circuit court erred in granting an injunction that stopped the public from using the waters without permission from the Landowners.  The State claimed the Landowners had no protectable right because the State holds South Dakota’s waters in trust for the public and controls the waters for the “benefit of the public.”  The Court agreed that the Landowners did not have an exclusive right because all waters in the state are public property.

The Court held that the public’s superior right to use the waters for “public purposes” functions as a qualification of the Landowners’ rights, but the Legislature had not clarified whether “public purpose” included the public’s right to use non-meandered waters for recreational purposes.  Thus, the Court remanded the circuit court’s injunction for modification.  The court held that the injunction prohibited the GF&P and others from facilitating access for the public to enter and use the water or ice on the private property for any recreational purpose, absent legislative authorization.

Accordingly, the court affirmed and remanded the declaratory relief and remanded the injunctive relief to modify the language.

Andrea Hagler