Public access fight draws state of South Dakota into court with townships
Local governments erase invisible routes hunters use to access public land
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Deer hunters Bill Berry and Kyle Battell recently attempted to access public land in the rolling hills and rugged backcountry north of Wall.
But the parcels of public land were surrounded by privately owned land – creating something hunters call a “landlocked parcel.” That’s the case with many public acres west of the Missouri River.
Berry and Battell knew that, but they thought they could reach their destination by way of a 66-foot-wide public path called a “section line.” The lines – drawn by surveyors in settlement days – divide the state into a checkerboard of square-mile sections. Like many West River big-game hunters, Berry and Battell were using a GPS to identify and stay on the section lines they thought would guide them to the landlocked hunting grounds.
But they say they were intercepted by a neighboring landowner, Patrick Trask, who pulled up in his pickup truck and accused them of trespassing and poaching.
“He was trying to threaten us to get out of there,” Berry said. “We didn’t want any problems.”
Section lines are easy to find in rural eastern South Dakota because many of them are roads or two-track trails with barbed-wire fences on either side. But those identifiers are less common west of the Missouri River, where some terrain is too rough for straight roads and fences.
Berry and Battell say they’ve been confronted and bullied off landlocked public West River parcels multiple times, and even had to leave behind a deer they killed.
Trask and other landowners who pay for the right to graze livestock on the landlocked public parcels claim they have the right to control access, according to Berry and Battell.
The state Department of Game, Fish and Parks, which enforces hunting laws, says that’s illegal. The GF&P says private landowners cannot unilaterally close off public land to hunting.
But in this case, Trask had convinced the Elm Springs Township Board of Supervisors to vacate almost all the section lines in the township, blocking access to the landlocked public parcels.
The state Office of School and Public Lands owns the landlocked parcels. The office is challenging Elm Springs in court, as well as a similar action in neighboring Smithville Township.
The state alleges in the lawsuits that it’s “aggrieved” by the townships’ actions because the state needs the section lines for access to its property.
The Attorney General’s Office, which is handling the lawsuit for the state, declined requests for an interview because of a policy against discussing pending litigation.
Welcome to Elm Springs Township
Trask ranches 11,091 acres in Elm Springs. He declined to speak on the record without permission from the lawyers representing the township, Bill and John Taylor. The law firm did not reply to interview requests.
According to court documents, however, Trask asked the Elm Springs Township supervisors to vacate the section lines. Trask’s daughter, Julie, the township clerk, prepared and submitted the paperwork on the Township’s behalf.
Court documents in the lawsuit against Smithville Township do not say when or why supervisors there decided to vacate their section lines.
The Elm Springs resolution cites “theft and vandalism” as reasons for vacating its section lines because…
“In the recent months we have had an increase in the number of unidentified vehicles carrying strangers from every walk of life … we feel that it is of utmost importance to enact some measures to help protect us from the liability of strangers who wantonly go where they please with no regard for property rights or the potential downside effects of irresponsible behavior.
“These same vehicles could also be carrying a host of drugs and drug paraphernalia, which is becoming commonplace, but is most unwelcome here (both the drugs and the subculture).”
The resolution continues with a seven-point list of concerns, including increased wildfire potential, “urban traffic and out-of-state wanderers,” “playgrounds for druggies,” safety regarding “total strangers,” livestock health, and squatters “living in filth and squalor leaving a trail of mess and destruction.”
Meade County Sheriff Ron Merwin does not recall landowners reporting squatting, theft, vandalism or drug use by people traveling along section lines there.
The department does get occasional calls from landowners reporting hunters who leave cattle gates open and wander off section lines and onto private property, Merwin said.
Custer County State’s Attorney Tracy Kelley is not involved in the Elm Springs or Smithville litigation, but she has experience with local government decisions to vacate section lines. The Elm Springs and Smithville cases could be based on a state law , she said. The law says, “No board of county commissioners or board of supervisors may vacate a section-line highway that provides access to public lands or public waters embracing an area of not less than forty acres.”
The landlocked public parcels in question are larger than 40 acres.
Kelley said Custer County has vacated section lines before, but it’s rare, and it’s typically only one section line at a time for a specific reason.
“I’m not aware that Custer County ever vacated a section line that would access public land, but the statute is very clear,” Kelley said. “I think vacating a section line should be an exception, not the rule.”
Kelley said section lines exist for public travel.
“A section line is a public right of way,” she said. “The purpose of a section line is so you can maintain access to other parcels and lands.”
And they are vital for avoiding landlocked situations, Kelley said.
“You want to make sure that the public has access, and so whether there’s a highway there or not, even if it’s unimproved, the public has a right – unless a section line is vacated – to traverse that section line,” she said.
Section lines are also sometimes used for infrastructures such as pipes, power lines, and roads.
Private access to public land
A report published by the Theodore Roosevelt Conservation Partnership says there are nearly 200,000 acres of landlocked federal public land in South Dakota, mostly West River (the study does not consider state-owned land).
Some surrounding landowners leverage landlocked public parcels for private hunting, according to public hunting advocate Josh Soholt.
“A lot of these people are setting up outfitting companies, and these landowners are taking paying guests onto land that we all pay for, to profit off state-managed animals, with exclusive access to these grounds that we fund,” Soholt said.
James Schade, former South Dakota deputy commissioner of school and public lands, said that’s illegal.
“A landowner who leases it from the state for whatever purpose, pasture or whatever, they’re barred from renting it or charging hunters to go access it, because it’s not their land to give access to,” Schade said. “Everybody ignores that.”
Some private outfitters operate in Elm Springs and Smithville townships.
Pat Trask’s brother, Tom, runs Dakota Trophy Adventures on ranchland in Elm Springs Township. And Dakota Safaris operates in Smithville Township.
Terry Mayes was a state trooper in Meade County through the late 1960s and early ’70s. He said some of the township residents have a history of animosity toward GF&P.
“During that time, most of those landowners were of the opinion that they owned the wildlife, all the wildlife – that the wildlife did not belong to the public,” Mayes said. “And that is more or less the crux of this entire argument going back historically.”
When the two hunting outfitters were one operation, the owners were caught giving their customers resident landowner tags if a customer was unable to draw an out-of-state tag, according to former GF&P Secretary John Cooper.
That resulted in an undercover operation by the GF&P and charges against the outfitter. Pat and Tom Trask were not directly involved.
The bigger picture
Landowners circumventing the law to limit public access isn’t new, Cooper said.
Cooper recalled an instance of a commercial goose-hunting operator north of Pierre who learned about a law prohibiting hunting within 660 feet of livestock. He built a pen for his bulls a half-mile long and 30 feet wide.
“He did that obviously not for a major ranching project, but to keep people off of that section line that he didn’t want people on,” Cooper said.
Even with a clear route for access, hunters and land managers can run into issues, according to former GF&P conservation officer John Wrede.
There’s an 8,300-acre landlocked parcel of national forest land in the southern Black Hills that can be accessed by the public only via the Mickelson Trail or section lines, for example.
According to Wrede, a couple of landowners along the trail were notorious for slashing tires in the parking lot of the trailhead at Minnekahta Junction. He said those landowners occasionally wouldn’t even let the Forest Service in for management purposes. Wrede said those reports slowed in recent decades.
Creating more access
There are ways to create better public access to landlocked parcels.
Lori “Chip” Kimball, South Dakota Bureau of Land Management field manager, said one way is an easement in which the government buys access from the surrounding landowner. Another option is to purchase the property outright. A third option is an exchange of property – swapping some of the public lands for private land to create access.
Some hunters would rather see the state leverage existing rules.
The state’s section line laws mean South Dakota is well positioned to create affordable, clear access to landlocked parcels, according to advocate Josh Soholt.
“South Dakota, you have the legal pieces in place with section lines and right-of-way law,” he said. “The state could step in and make it a little bit more formal, maybe creating a little parking area with some signage that fleshes out that, ‘Yes, you can access through here and make your way from point A to point B to go utilize this ground that we all own.’”
The current hurdles keep some hunters from bothering with landlocked parcels, according to Kingsbury County outdoorsman Jacob Janas.
“Nobody knows whether or not you can access it, and the best answer in most cases of this is, ‘get landowner permission,’” he said. “Well, every hunter in the state knows how well getting landowner permission goes.”
Many landowners are happy to grant a hunter access to landlocked parcels, according to West River rancher Steve Livermont. He said it comes down to respect.
“People have got to realize that hunting is a privilege and not a right,” he said. “People out here own private property. That’s one of the basic principles that our country is founded on.”