According to South Dakota News Watch, Peters owns 581 acres of pastureland in Aurora County. But in November 2018, in a legal notice in the Mitchell Daily Republic, Peters listed his address as Milliken, CO.
Does Peters live in South Dakota? Is Peters a legal resident of South Dakota? Is Peters entitled to resident hunting privileges in South Dakota?
He wasn’t in 2016, when, according to Bart Pfankuch, Peters pled guilty to a misdemeanor charge of “illegally obtaining a resident hunting license in Lake County.” Peters thus went to great pains the next year to establish an affirmative legal answer to all three questions so he could shoot South Dakota deer when he visited:
Before applying for a resident deer license in 2017, Peters bought a house in White Lake more than 90 days before applying. He paid to have it fixed up and built a shed in the back yard.
He also obtained a South Dakota driver’s license, registered his vehicles in Aurora County and registered to vote in South Dakota. He said he relinquished his Colorado residency and even purchased a non-resident license when he once returned to Colorado to hunt pheasants [Bart Pfankuch, “S.D. Hunter Residency Investigation and Arrest Create ‘Nightmare’ for Retired Combat Veteran,” South Dakota News Watch, 2020.02.19].
Game Fish and Parks and Aurora County state’s attorney John R. Steele went to great pains establish a strong negative to those questions and make Peters a repeat offender:
Before filing four misdemeanor charges against Peters in November 2018, state investigators obtained nearly two years of Peters’ cellphone records and correlated which cell towers were pinged; they drove by his South Dakota house at least 27 times and took 65 photos; they tracked his Facebook use; they interviewed his neighbors in White Lake and a contractor who worked on the property; they obtained real estate transaction and utility usage data; they recorded phone calls between Peters and an investigator; they examined UPS delivery information to both his homes; and they sent a state investigator to the Denver area in a failed attempt to interview Peters’ wife [Pfankuch, 2020.02.19].
Peters tells Pfankuch that fighting this prosecution has cost him $18,000 in legal fees. GF&P law enforcement supervisor Emmett Keyser says tough shiskey, there’s precedent at stake (and slips in a class-warfare dig):
“In his defense, Mr. Peters has attempted to look at all the facts and try to meet all these standards as best he can, but it still boils down to whether his domicile is in South Dakota or in Colorado, and it can only be one,” Keyser said. “I’m sure he argues that, ‘I live in South Dakota and I live in this small little house in small-town South Dakota and never mind that $700,000 house or whatever I have in Colorado, this is where I live.’”
Keyser acknowledged that the investigation into Peters’ residency was extensive, and that someone who is the subject of a potentially precedent-setting case may suffer some cost and hardship.
“It probably seems like it’s kind of odd the we would look at that with that much scrutiny,” Keyser said. “But it could, as with any case, it has the potential to set precedent” [Pfankuch, 2020.02.19].
But we got no precedent. Just before trial last fall, the prosecution caved, with state’s attorney Steele offering “a plea deal with no jail time, a small fine and no loss of hunting privileges. It was also agreed that Peters would be able to hunt as a resident….”
So it’s resolved: buy a house, spend a few days here each year (52 in 2017, 67 in 2018, says Pfankuch, based on Peters’s cell phone data), follow the law and the hunting handbook, and you’re a resident, right?
No you’re not, says state’s attorney Steele, with an apparent contempt for the rule of law:
“The language of the handbook; I don’t know that it’s terribly relevant,” said Steele, who resigned as Aurora County state’s attorney in January and now serves as an unpaid deputy in the state’s attorney’s office. “The law speaks of residence, where you actually live … you can do everything on the checklist but if you don’t live here, you’re not entitled to resident hunting privileges.”
Now that the Peters case has ended, Steele said he still does not consider Peters a South Dakota resident but has agreed not to prosecute him further.
“Do I think he’s a bona fide resident at this point? No, I don’t,” Steele said. “But he’s jumped through enough hoops that, yeah, we’re going to make the call that we’re not going to prosecute this case. That’s what that policy is all about” [Pfankuch, 2020.02.19].
After the case, Steele took the unusual step of authoring a new set of residency guidelines called, “Prosecution standards for part time residents seeking SD hunting licenses.”
Steele told News Watch the guidelines are “an internal policy” in place only for Aurora County and that the policy was distributed only to [defense attorney David] Jencks, Peters, [GFP conservation] Officer [Lynn] Geuke and Steele’s staff.
…“It was our attempt to formulate a consistent policy that would be applicable to people who fall between the cracks, who have two residences in the sense of houses or other abodes and spend time in both of them,” Steele said. “How are we going to consistently handle those situations so that we’ve got clear lines of demarcation as to what we will look at as a violation of game laws and what we won’t?”
However, the local policy includes elements of residency that are not addressed in state law, such as defining “dwelling” as a structure with permanent electrical service, an indoor, functional kitchen and bathroom with hot and cold running water, and a sewage connection [Pfankuch, 2020.02.19].
Um, how do we get consistency if a state’s attorney is writing his own policy, based on standards that aren’t in law, and doesn’t show that policy to anyone but parties to his mostly failed prosecution? How does any landowner or snowbird or visitor know if the Aurora County state’s attorney and GF&P is going to come drag them through court for seeking a resident hunting license? How do any of us know who’s a resident and who isn’t if John R. Steele is making stuff up and keeping it secret?
The Peters case demonstrates that utter porosity of South Dakota’s definition of residency and the privileges and rights that flow therefrom. Home is where the heart is; South Dakota’s attempt to establish a legal standard clearer than that appears to be a complete failure. The Peters case indicates that whatever privileges and rights we’re trying to reserve for “South Dakota residents”—hunting, fishing, voting, donating to campaigns, circulating petitions—have little firm legal basis.
Related Legislation: The House is dawdling over House Bill 1184, which would allow nonresident landowners to get tags to hunt deer and antelope on their own land. But if HB 1184 passes, Peters will have to expand his land holdings to qualify: HB 1184 grants this hunting privilege only to nonresidents who own at least 640 contiguous agricultural acres. Big money and GOED support HB 1184; the South Dakota Wildlife Federation and the Izaak Walton League oppose it.
Related Media Critique: South Dakota News Watch is good, this story proves again that they are not purely objective. Many factors help determine residency; Peters’s past service in the military sheds no light on his current legal resident status. Yet SD News Watch headlines that legally irrelevant status, which Peters and his Madison attorney David Jencks repeat to build sympathy for his case. It would have been far more instructive and legally relevant to refer to Peters as a Colorado optometrist and Aurora County landowner. I don’t mind when SD News Watch steps away from strict objectivity and calls our attention to social injustice. But if there is injustice in this individual case (and Steele’s arbitrary extra-legal rule-making smells strongly of injustice), we can highlight it without legally irrelevant military fetishism.