Duerre v. Hepler
2017 SD 8
| S.D. | 2017Background
- Four Day County landowners sued the State, GF&P, the GF&P Secretary, and a defendant class of members of the public who used or intended to use floodwater/sloughs (non-meandered lakebeds) on their land for recreation.
- The sloughs were non-meandered when originally surveyed, so landowners own the lakebeds, but Parks v. Cooper held that all waters (including non-meandered) are held in public trust by the State.
- Public recreational use (boats, ice shacks, vehicles) increased beginning ~2001; landowners reported trespass; GF&P told users they could use the waters if access was legal.
- Circuit court certified a defendant class (persons who have used or intend to use the waters), appointed the GF&P Secretary as class representative, and compelled the Attorney General to represent the class.
- On cross-motions for summary judgment the circuit court (a) declared that absent legislative authorization the public may not use non-meandered waters on the landowners’ property for recreation without landowner permission, and (b) enjoined the State from facilitating public access without landowner permission or legislative authorization.
- The State appealed class certification, the declaratory ruling about recreational use under the public trust, and the injunction’s scope; the Supreme Court affirmed certification, affirmed the need for legislative decision (per Parks), reversed part of the injunction, and remanded for language revision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification (defendant class & AG representation) | Class is numerous; common question whether public may use waters; GF&P Secretary can represent class and AG can defend | Certification improper as court may lack personal jurisdiction over nonresident class members and AG cannot represent private citizens | Affirmed: certification proper; jurisdiction over representative suffices; AG may defend because State is interested party |
| Whether public trust includes recreational use of non‑meandered waters | Absent legislative authorization, public may not use non‑meandered waters for recreation; Parks supports landowner control unless Legislature acts | State: public trust and legislative policy favor public recreational use; GF&P may allow such use | Court adhered to Parks: Legislature must decide; no current legislative authorization for recreational use — declaratory relief affirmed with modified language |
| Whether landowners can enjoin public use absent legislative action | Landowners seek injunction preventing public use and prohibiting State from facilitating access without landowner permission | State: waters are public trust assets; landowners lack exclusive rights; injunction inappropriate because remedy at law suffices and State not at fault | Partially reversed: injunction preventing State facilitation without legislative authorization is allowed; injunction giving landowners power to permit/deny public use was struck and remanded for narrower language |
| Scope of injunction against State and class members | Broad injunction sought (prevent all public recreational use absent landowner permission) | State argued injunction overreaches public trust and statutory standards for permanent injunction | Court held injunction may prevent State facilitation pending legislative decision to avoid multiplicity of suits, but cannot vest superior control in landowners; court remanded to narrow the injunction wording |
Key Cases Cited
- Parks v. Cooper, 676 N.W.2d 823 (S.D. 2004) (held all waters, including non‑meandered, are held in public trust; left question of recreational use to the Legislature)
- Trapp v. Madera Pacific, Inc., 390 N.W.2d 558 (S.D. 1986) (framework on class action purposes and Rule 23 prerequisites)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (commonality standard for classwide adjudication)
- Strong v. Atlas Hydraulics, Inc., 855 N.W.2d 133 (S.D. 2014) (statutory and equitable standards for permanent injunctions)