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Day County township boards vacating roads to keep anglers off flooded lands

Farmers with flooded lands are using their elected township boards to legally shut down many miles of public roads in Day County this summer.

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The 66-feet wide strips are returned to the adjoining landowners to become private property.

The strategy is to reduce or prevent people's ability to launch boats from public rights of way for recreational use of floodwaters over private lands.

The road vacations began in May and continued every month since then, reaching at least five townships so far.

The latest round came Monday with public notice from Webster Township that its board of supervisors received petitions seeking two segments of roads be vacated.

By vacating rather than closing the roads, the land returns to private ownership.

Members of the public such as anglers, hunters and trappers could face criminal trespassing charges if they don't get permission to travel over private property to reach the waters.

If a road is only closed, however, people generally could still walk on it or fish from it, unless otherwise prohibited by law or ordinance.

The pattern of vacating roads is unfolding in Troy, Valley, York, Butler and Webster townships.

It comes as landowners opened another battlefront last week in state court.

Thad Duerre, Clint Duerre, Robert Duerre and LaRon Herr from Troy Township sued state Game, Fish and Parks Secretary Jeff Vonk, along with the State of South Dakota and the Department of Game, Fish and Parks.

The four landowners have property within or adjoining a slough that's become so full of water and populated with game fish during the past 20 years that it's now a popular spot for angling year-around.

The Duerres and Herr say in their lawsuit they want "relief that restores peace and quiet to their private property."

They are asking the court to prohibit hunting, fishing or other activity by members of the public on the water or ice over their properties unless the Legislature decides otherwise.

The landowners' attorneys are Ronald Parsons Jr. and Shannon Falon of Sioux Falls and Jack Hieb and Zachary Peterson of Aberdeen.

They are seeking an answer that the South Dakota Supreme Court declined to answer 10 years ago in another flooded-lands lawsuit from Day County known as Parks v. Cooper.

The justices decided in the 2004 case brought by Ordean Parks against then-Game, Fish and Parks Secretary John Cooper that the waters belong to the public while the private lands beneath them remain private.

The justices said the Legislature has the responsibility to designate the permissible uses of the waters above flooded private lands.

The Legislature has repeatedly tried to answer that question but failed. The most recent attempt came during the 2014 session on legislation brought by Sen. Corey Brown, R-Gettysburg.

Cooper now is chairman of the Game, Fish and Parks Commission.

Some of the landowners involved in the township road-vacations in recent months testified last winter against the Brown legislation.

They said they didn't want people on the water or ice above their lands without their permission.

The new lawsuit hinges on the fact the Legislature didn't grant any right to the public to use water over flooded private land for recreational purposes.

The lands owned by the Duerre family and Herr in Troy Township began to flood in 1993 and by 2001 had become an attractive spot for public fishing.

People used County Road 33 to launch boats to get on the water.

The Day County Commission closed a segment of County Road 33 effective July 15 to curtail public access.

The lawsuit against Vonk claims that anglers said they weren't trespassing when they were on the water above the land owned by the Duerres and Herr and that GF&P personnel took the same legal position.

As many as 200 boats have been launched some days during spring, summer and fall, and as many as 70 ice-fishing houses have been erected during the winter, without any compensation to the landowners, the lawsuit says.

Vonk said his office sends a letter to the township board each time that a petition to vacate is received.